NAYARA v. NINGBO LEEHO IMPORT & EXPORT CO. LTD
(2022)LCN/17183(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Tuesday, January 18, 2022
CA/K/580/2016
Before Our Lordships:
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
ALI NAYARA APPELANT(S)
And
NINGBO LEEHO IMPORT & EXPORT COMPANY LIMITED RESPONDENT(S)
RATIO
THE PURPOSE OF AN APPEAL
It is elementary that an appeal is not for retrying the action, rather it is a rehearing on the Record of Appeal. The appellate Court reviews the decision of the lower Court to find out if it came to the correct decision. A party should thus be consistent in stating his case and consistent in proving it. He would not be allowed to take one stance in the trial Court then another stance on appeal. Justice is much more than a game of hide and seek. It is an attempt, our human imperfection notwithstanding, to discover the truth. A party should not be seen to approbate and reprobate or to speak from both sides of his mouth at the same time on an issue in the case – Thomas Wyatt and Son (North Nigeria) Ltd Vs Plumstead Investment Limited (2019) 12 NWLR (Pt 1687) 540, Ararume Vs Ubah (2021) 8 NWLR (Pt 1779) 511. No reasonable Court or Tribunal will come to the aid of a party who is inconsistent in the presentation of his case before it – Oliyide & Sons Ltd Vs Obafemi Awolowo University Ile-Ife (2018) LPELR-43711(SC), Trade Bank Plc Vs Pharmatek Industrial Projects Ltd (2020) 8 NWLR (Pt 1725) 124, Akande Vs IBB University, Lapai (2020) LPELR-52552(CA). In Akaninwo Vs Nsirim (2008) All FWLR (Pt. 410) 610 at 663, Tobi, JSC made the point thus:
“A litigant should not be allowed to speak at the same time or the same moment from the two sides of his mouth. He can only be allowed to speak from one side of the mouth at the same time or the same moment. He cannot make a case in his pleadings and suddenly change or reverse position to make a different case. A party cannot by his complete state of mind make an admission and later decide to change it by an amendment.” PER ABIRU, J.C.A.
THE PURPOSE OF SUMMARY JUDGEMENT
The primary object of summary judgment procedure is to allow speedy disposition of a controversy without the need for trial – Nnabude Vs G N Godiscoy (W/A) Ltd (2010) 15 NWLR (Pt 1216) 365, Bona V Textile Ltd Vs Asaba Textile Mill Plc (2013) 2 NWLR (Pt 1338) 357.
Order 11 of the High Court of Kano State (Civil Procedure) Rules provides for summary judgment where it is clearly shown on the papers before the Court that the defendant has no good defence to a plaintiff’s claim. The whole purpose of the summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. A sham defence is an unreal, fake and deceitful defence. No amount of sophistry or technical pyrotechnics can launder a sham defence into a real defence to a plaintiff’s pleaded facts and verifying evidence. In other words, the summary judgment rules are specially made to help the Court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied – United Bank for Africa Plc Vs Jargaba (2007) 11 NWLR (Pt 1045) 247, University of Benin Vs Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441, Ifeanyichukwu Trading Investment Ventures Ltd Vs Onyesom Community Bank Ltd (2015) 17 NWLR (Pt 1487) 1, Matab Oil & Gas Ltd Vs Fundquest Financial Services Ltd (2020) 17 NWLR (Pt 1752) 1. PER ABIRU, J.C.A.
THE DIFFERENCE BETWEEN PROCEDURAL JURISDICTION AND THE SUBSTANTIVE JURISDICTION
The law is that there is a whole world of difference between procedural jurisdiction and the substantive jurisdiction of a Court to hear a matter and a matter of procedural jurisdiction does not qualify as “a jurisdictional challenge to the competence of the Court” that can be raised at any time.
Procedure for invoking the jurisdiction of Court should not be confused with the authority of the Court to decide matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction. It is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or Tribunal in going into matters before it are matters of procedure regulated by procedural rules. A plaintiff who has commenced an action which on the face of it is not incompetent is deemed to have invoked the presumed jurisdiction of the Court. A matter that impugns the presumed competence of the action should be raised by the opponent – Gafari Vs Johnson (1986) 5 NWLR (Pt 39) 66 at 71, Atolagbe Vs Awuni (1997) 9 NWLR (Pt 522) 536, Mobil Producing Nigeria Unlimited Vs Lagos State Environment Protection Agency (2002) 18 NWLR (Pt. 798) 1. Nigeria National Petroleum Corporation Vs Idi Zaria (2014) LPELR 22362(CA).
It is matters of substantive jurisdiction that can be raised at any time and which if resolved against a party renders the entire proceedings a nullity, not matters of procedural jurisdiction – Odu’a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523 1, Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448, Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488. A matter of procedural jurisdiction must be raised by a party before taking steps in the proceedings and where it is not so raised, it is deemed waived and cannot be raised again by the party unless there has been a substantial miscarriage of justice caused thereby –F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387, Attorney General, Kwara State Vs Adeyemo (2017) 1 NWLR (Pt 1546) 210, Akahall & Sons Ltd Vs Nigeria Deposit Insurance Corporation (2017) 7 NWLR (Pt 1564) 194, Belgore Vs Federal Republic of Nigeria. (2021) 3 NWLR (Pt 1764) 503, Bakari Vs Ogundipe (2021) 5 NWLR (Pt 1768) 1. PER ABIRU, J.C.A.
THE POSITION OF LAW WHERE A PARTY CONSENTS TO AN IRREGULAR PROCEDURE ADOPTED BY HIS ADVERSARY IN THE TRIAL COURT
Where a party consents to an irregular procedure adopted by his adversary in the lower Court by participating in the proceedings without any complaint, he cannot be heard to complain on appeal that the procedure was irregular – Adama Vs State (2018) 3 NWLR (Pt 1605) 94, Ekwuruekwu Vs State (2020) 4 NWLR (Pt 1713) 114, Ajibade Vs Gbadamosi (2021) 7 NWLR (Pt 1776) 475, Aje Printing (Nig) Ltd Vs Ekiti LGA (2021) 13 NWLR (Pt 1794) 498. The Appellant cannot be heard on this complaint and it is unfounded in this appeal and cannot affect the judgment of the lower Court. PER ABIRU, J.C.A.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kano State delivered in Suit No K/358/2016 by Honorable Justice Nasiru Saminu on the 16th of September, 2016.
The Respondent was the claimant in the lower Court and his claim was for the sum of $122,214.5833 (One Hundred and Twenty Two Thousand, Two Hundred and Fourteen US Dollars, Five Thousand Eight Hundred and Thirty Three Cents) being the amount due for textile materials supplied by the Respondent to the Appellant and which sum the Appellant failed, refused and neglected to pay despite repeated demands.
The case of the Respondent against the Appellant in support of the claims was that it entered into an arrangement with the Appellant and his partner called Rabiu, under the trade name AlMustapha Salisu Ventures, of supplying textile materials to them on credit and to sell and thereafter remit the payment for the goods and that it was agreed that the remittance would be in US Dollars. It was its case that it supplied the textile materials as agreed for some years and that a reconciliation of accounts showed that the Appellant and his partner were in arrears of making the remittances in the sum of USD300,758.5833 as at July 2015.
It was the case of the Respondent that the Appellant and his partner had a meeting between themselves to determine and apportion the sum owed by each of them individually out of the outstanding sum and that at the end of the meeting, they made known to it in writing that the sum due from the Appellant personally was USD122,214.5833. It was its case that the Appellant admitted in writing via a letter written by his Counsel that he was indeed owing the said sum of USD122,214.5833 and that the Appellant was referred to as “Ali” in the correspondences. It was its case that the partner of the Appellant, Rabiu, settled the portion of the indebtedness apportioned to him while the Appellant failed, neglected and refused to pay up the admitted indebted sum despite repeated demands.
The writ of summons and the statement of claim were accompanied by the list of witnesses, written deposition of witnesses on oath and copies of the documents to be relied upon at trial. The Respondent also filed a motion for summary judgment pursuant to Order 11 of the High Court of Kano State Rules of 2014, along with the originating processes, and the motion was supported by an affidavit in the terms of the case of the Respondent on the pleadings and to which was attached documents and by a written address of arguments.
Upon being served with the originating processes and the motion for summary judgment, the Appellant caused to be filed (i) a notice of preliminary objection challenging the competence of the action on the grounds that (a) proper parties were not before the Court, (b) the Respondent was a foreign company carrying on business in Nigeria without due compliance with Section 54 of the Companies and Allied Matters Act, and (c) the Respondent was not a registered company in Nigeria; and (ii) a counter-affidavit to the motion summary judgment.
The Appellant admitted in the counter-affidavit that he and Rabiu carried on business as partners under the name of AlMustapha Salihu Ventures and that they received supplies of textile materials from the Respondent on credit and that they remitted the money after sale of the goods. The Appellant admitted that in a reconciliation of accounts carried out in July 2015, it was discovered that the partnership, AlMustapha Salihu Ventures, was owing the Respondent the sum of USD300,758.00 and that a document was issued to that effect. It was his case that he was not indebted to the Respondent in the sum of USD122,214.5833 or in any sum at all and that it was the partnership that was owing the Respondent. It was his case that it was never agreed between him and his partner, Rabiu, to individualize the indebtedness and that he never instructed the Counsel that wrote the letter admitting that he owed the Respondent the sum of USD122,214.5833. It was his case that the letter was written by the Counsel to his partner and that he signed the letter without knowing its content as he cannot read or write in English language and that he was wrongly sued.
Counsel to the Appellant filed a written address on the notice of preliminary objection and a written address in support the counter-affidavit. Counsel to the Respondent filed a written response to the notice of preliminary objection and Counsel to the Appellant filed a reply address thereto. The lower Court took arguments on both the preliminary objection and the motion for summary judgment together and it delivered a considered judgment wherein it dismissed the notice of preliminary objection and granted the motion for summary judgment. The lower Court entered judgment in favour of the Respondent in the sum claimed.
The Appellant was aggrieved by the judgment and he caused his Counsel to file a notice of appeal dated the 19th of September, 2016. The notice of appeal was subsequently amended and the Appellant filed an amended notice of appeal dated the 10th of July, 2018 and it consisted of six grounds of appeal. In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 10th of July, 2018 on the 11th of July, 2018 while Counsel to the Respondent filed a reply brief of arguments dated the 3rd of December, 2018 on the 4th of December, 2018 and the brief of arguments of the Respondent was deem properly filed by this Court on the 11th of February, 2019. Counsel to the Appellant filed a reply brief of arguments on the 25th of February, 2019. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their submissions in the appeal.
Counsel to the Appellant distilled four issues for determination in the appeal and these were:
i. Whether the trial Court erred in law by holding that the Respondent was right in suing the Appellant alone.
ii. Whether the trial Court lacked jurisdiction to entertain the suit.
iii. Whether the trial Court erred in law by relying on Exhibit Leeho 2 as proof of the Appellant’s indebtedness to the Respondent and granting the application for summary judgment.
iv. Whether the trial Court denied the Appellant his right to fair hearing by proceeding to hear the Respondent’s motion for summary judgment while the Appellant was still within time to file his defence to the statement of claim.
In arguing the first issue for determination, Counsel stated that the lower Court was in error in holding that the Respondent could commence the action against him alone, and not along with his partner or their partnership in its registered name and that it was clear from the documentary exhibits that the partnership was still in existence and had not been terminated. Counsel stated that the money claimed against the Appellant alone was owed by the partnership as shown by the document on reconciliation of accounts between the parties attached to the motion for summary judgment as Exhibit Leeho 1. Counsel stated that the document wherein he was said to have admitted owing the sum claimed, Exhibit Leeho 2, was signed by him in the ordinary course of business and that it is settled law that the act of any partner in the ordinary course of business binds the partnership and he referred to the provisions of Section 5 of the Partnership Act 1890 and the case of Ndoma Egba Vs ACB Plc (2001) All FWLR (Pt 283) 152.
Counsel stated that, by reason of the fact that the Appellant and his partner continued to do business together after the reconciliation of the accounts, the payments made towards settlement of the outstanding sums due to the Respondent was made on behalf of the partnership and that as such, it is the partnership that ought to have been sued in its name or all the partners together or him on behalf of the partnership and he referred to the case of Maki Vs Saidi (1961) ALL NLR 524. Counsel stated that the letter, Exhibit Leeho 2, was not evidence that the partnership had been terminated and that termination of a registered partnership is regulated by the Partnership Act. Counsel urged the Court to resolve the issue for determination in favour of the Appellant.
On the second issue for determination, Counsel stated that the lower Court lacked jurisdiction to entertain the claims of the Respondent as the proper procedure was not followed in commencing the action. Counsel stated that the action was commenced during the vacation period of the lower Court and that by the provisions of Order 45 Rules 4 and 5 of the High Court of Kano State Rules 2014 a party desirous of having his matter heard during vacation was obligated to first apply by a motion ex-parte for leave to be heard during vacation. Counsel stated that the lower Court entertained the action without the Respondent first applying by motion ex-parte for leave to be heard during vacation, a necessary condition precedent, and this robbed the lower Court of the requisite jurisdiction to entertain the action.
Counsel stated that Rules of Court are meant to be obeyed and that one of the conditions for the exercise of jurisdiction by a Court is that all conditions precedent for commencing action must have been fulfilled and he referred to the cases of Oyegun Vs Nzeribe (2010) 1 SCNJ 127 and Sylva Vs INEC (2015) All FWLR (Pt 810) 1151. Counsel reiterated that the failure of the Respondent to obtain the required leave to be heard during vacation was fatal to the action of the Respondent and that the word used in the provision is ‘shall’ and this makes compliance mandatory, leaving no room for exercise of discretion and he referred to the cases of ACB International Bank Plc Vs Otu (2008) All FWLR (Pt 406) 1817 and Salik Vs Idris (2015) All FWLR (Pt 790) 1307. Counsel stated that the entire proceedings before the lower Court were thus null and void.
Counsel contended further that the Respondent is a foreign company, not registered in Nigeria, and that by the provisions of Sections 54 and 55 of the Companies and Allied Matters Act the transaction between the Respondent and the Appellant was illegal and unenforceable by the lower Court and he referred to the case of Fasel Services Vs NPA (2009) 4 SCNJ 242 on what amount to an illegal contract or transaction. Counsel stated that the act of the Respondent in carrying on business in Nigeria without complying with the provisions of the law is evident from the processes filed by the parties before the lower Court and he referred to the case of Edicomsa Intl Inc. Vs C.I.E. Ltd (2007) All FWLR (Pt 359) 990 on the definition of carrying on business. Counsel stated that the lower Court lacked jurisdiction to enforce an illegal contract and he referred to the cases of Fasel Services Vs NPA supra, Ajaokuta Steel Co Nig Ltd Vs Corporate Insurers Ltd (2004) All FWLR (Pt 235) 189, Pan Bisbilder Vs FBN (2000) 1 SCNJ 26, amongst others. Counsel urged the Court to resolve the second issue for determination in favour of the Appellant.
With regards to the third issue for determination, Counsel stated that the lower Court was in error in relying on the document attached as Exhibit Leeho 2 to the motion for summary judgment to found liability on the part of the Appellant because the contents of the document contradicted the contents of the document attached as Exhibit Leeho 1 and the deposition in the affidavit to the effect that the Respondent supplied the textile materials to the partnership.
Counsel referred to the case of Wema Securities and Finance Plc Vs Nigeria Agricultural Insurance Corporation (2015) All FWLR (Pt 807) 410 on the essence of the summary judgment procedure and stated that the Appellant raised triable issues in his counter-affidavit to have warranted the lower Court transferring the matter to the general cause list for trial on the merits. Counsel stated that there was nothing showing that the partnership between the Appellant and Rabiu had been terminated to empower the Respondent to commence an action against the Appellant alone. Counsel urged the Court to resolve the third issue for determination in favour of the Appellant.
In arguing the fourth issue for determination, Counsel referred to the provisions of Order 11 Rule 4 of the High Court of Kano State Rules, 2014 on the processes that a defendant desirous of contesting a motion for summary judgment should file and the provisions of Order 17 Rule 2 of the Rules on the time allowed for a defendant to file a statement of defence to an action. Counsel stated that it is a requirement of Order 11 Rule 4 of the Rules that before a motion for summary judgment filed by a claimant can be set down for hearing, the defendant must either have filed a statement of defence together with the accompanying process or the time for doing so must have expired and that by the provisions of Order 17 Rule 2 of the Rules, the time for Appellant to file his statement of defence had not expired as at the time the lower Court heard and determined the motion of the Respondent for summary judgment.
Counsel stated that the hearing and determination of the motion for summary judgment thus breached the Appellant’s right to fair hearing and he referred to the cases of Oranezi Vs Ngige (2014) All FWLR (Pt 760) 1350 on the meaning of fair hearing. Counsel also referred to the case of Pan African Intl Inc Vs Shoreline Lift Boats Ltd (2010) All FWLR (Pt 524) 65 in restating that the test for fair hearing is the impression of a reasonable man and that the legal consequence of breach of fair hearing is that it renders the whole proceedings conducted a nullity. Counsel stated that looking at the entire proceedings of what transpired before the lower Court the impression of a reasonable person present in Court is categorically that the Appellant was not given a fair hearing. Counsel urged the Court to resolve the fourth issue for determination in favour of the Appellant.
Counsel concluded his arguments by praying the Court to find merit in the appeal and to allow same, set aside the judgment of the lower Court and order a trial of the action.
In his response, Counsel to the Respondent also distilled four issues for determination in the appeal and these were:
i. Whether the trial Court was right when it held that the Respondent, being a foreign company, had the legal right to sue the Appellant for recovery of the subject matter of the suit.
ii. Whether the learned trial Judge was right when he held that the Appellant was rightly sued alone at the trial Court.
iii. Whether the trial Court complied with the provisions of Order 11 of the Civil Procedure Rules when it held that the Appellant raised no triable issue and went ahead to enter judgment against him.
iv. Whether a party who had an opportunity of being heard but failed to utilize it can bring an action or appeal against the Court’s decision for breach of fair hearing.
In arguing the first issue for determination, Counsel stated that the Counsel to the Appellant completely misconstrued the provisions of Sections 54 and 55 of the Companies and Allied Matter Act and that Section 60 of the Act preserved the right of a foreign company to sue in Nigeria to enforce contracts and claim debts owed to it and that this right has been upheld in several decisions of this Court and of the Supreme Court and he referred to the cases ofOlaogun Ent. Ltd Vs SJ and M (1992) 4 NLR (Pt 235) 237 and In Ritz Pumen Fabrick GMBH & Co Vs AG Techo Continental Engineers Nigeria Ltd (1994) 4 NWLR (Pt 598) 298. Counsel proceeded to suggest that even if a foreign company breaches the provisions of Section 54 of the Companies and Allied Matters Act and carries on business in Nigeria without having been registered, it could still sue to enforce its contracts because Section 55 of the Act merely imposes a fine for such a breach and does not bar the foreign company from suing or being sued and he referred to the case of E.I.I.A Vs C.I.E. Ltd (2006) 4 NWLR (Pt 969) 114. Counsel stated that the contention of illegality canvassed by the Counsel to the Appellant was non-existent and that, moreover, a party cannot be allowed to take the benefit of a contract and then seek to rely on illegality to avoid liability and he referred to the cases of Sodipo Vs Lamminkainen OY (1986) 1 NWLR (Pt 15) 222 and Solanke Vs Abed (1962) NNLR 92. Counsel stated that the lower Court was thus correct when it held that the Respondent had the legal right to sue the Appellant for recovery of indebtedness and he urged the Court to resolve the first issue for determination in favour of the Respondent.
On the second issue for determination, Counsel reproduced the finding of the lower Court on the issue and he referred to the documents attached as Exhibits Leeho 1 and Leeho 2 to the motion for summary judgment – these are the document on reconciliation of accounts between the Respondent and the Appellant and his partner and the letter written by the Appellant and his Counsel where the Appellant admitted owing the Respondent USD122,214.5833 out of the total indebtedness due from the partnership. Counsel stated that the law recognizes the authority of Counsel to bind his client in an action and that this includes all matters collateral to such action and that the consent of the client was not necessary in respect of a matter within the ordinary authority of Counsel and he referred to the case of Afegbai Vs Att-Gen., Edo State (2001) FWLR (Pt 69) 1352. Counsel referred to Sections 20 and 22 of the Evidence Act, 2011 on the bindingness of admissions made by a person or his agent and stated that by Exhibit Leeho 2, the Appellant made representations to the Respondent as to his personal liability for the sum claimed and that he was estopped from resiling from the representation and he referred to the cases of Ebba Vs Ogodo (2000) 6 SC (Pt I) 133 and Iga Vs Amakiri (1976) 11 SC 12. Counsel stated that in the light of the above, the finding of the lower Court that the Respondent acted rightly in suing the Appellant alone was correct and he urged the Court to resolve the second issue for determination in favour of the Respondent.
With respect to the third issue for determination, Counsel stated that under the provisions of Order 11 of the High Court of Kano Rules, a defendant desirous of defending against a motion for summary judgment must file processes which show a bona fide defence on the merit, not one calculated to delay, and the defence must condescend on particulars by disclosing facts from which the Court can discern a good defence to the action and he referred to the case of Thor Limited Vs FCMB Ltd (2005) All FWLR (Pt 274) 217. Counsel stated that the Respondent presented a case supported by documents wherein the Appellant admitted a personal indebtedness of USD122,214.5833, Exhibit Leeho 2, and that the Appellant failed to aver facts that show a convincing defence to the claims of the Respondent. Counsel stated the contention of the Appellant that the letter, Exhibit Leeho 2, was not written on his instructions is not tenable because he counter-signed same and he admitted that the Counsel who wrote the letter was the lawyer to himself and his partner. Counsel reiterated his arguments under the second issue for determination on the scope of authority of Counsel to a party and urged the Court to resolve this issue for determination also in favour of the Respondent.
In arguing the fourth issue for determination, Counsel stated that the Appellant was given ample opportunity to be heard but that he failed to utilize the opportunity and therefore cannot be heard to complain of breach of fair hearing. Counsel stated that upon being served with the processes in the matter on the 12th of August, 2016, the Appellant chose to file a notice of preliminary objection and a counter-affidavit and did not file a statement of defence with accompanying processes and that it was on the day of the hearing of the matter, 9th of September, 2016, that the Appellant brought up the issue of filing of statement of defence, and by which time the period allowed him to file a statement of defence had elapsed. Counsel stated that at no time, even after the date of hearing and before judgment, did the Appellant file any statement of defence or an application to regularize a statement of defence. Counsel stated that having been given an opportunity to be heard, it was not open to the Appellant who failed to utilize the opportunity to complain of breach of fair hearing and he referred to the case of Chevron Nigeria Limited Vs Lowaz (2017) LPELR-42813(CA). Counsel urged the Court to resolve the issue in favour of the Respondent.
Counsel concluded his submissions by praying the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court.
Reading through the records of appeal, particularly the case of the parties on the writ and in the depositions in the affidavit and counter-affidavit on the motion for summary judgment together with the contents of the exhibits attached, the judgment of the lower Court and the notice of appeal, as well as the arguments of Counsel in their respective briefs of arguments, this Court is of the view that there are only two issues for determination in the appeal. These are:
i. Whether, on the peculiar facts and circumstances of this case, the lower Court was correct when it entered summary judgment in favour of the Respondents.
ii. Whether the lower Court breached the Appellant’s right to fair hearing at any stage of the proceedings.
This appeal will be resolved on the two issues for determination and all the relevant arguments canvassed by the Counsel to the parties in their respective briefs of arguments will be considered under the two issues for determination.
Issue One
Whether, on the peculiar facts and circumstances of this case, the lower Court was correct when it entered summary judgment in favour of the Respondents
Judgment was entered by the lower Court on the Respondent’s motion for summary judgment filed pursuant to the provisions of Order 11 of the High Court of Kano State (Civil Procedure) Rules. The term summary judgment denotes a judgment usually granted by Court on a claim about which there is no genuine issue of material fact, and upon which the claimant is entitled to prevail as a matter of law. Primarily, the Court takes into consideration the pleadings, the motions, and, where necessary, additional evidence adduced by the parties to determine whether or not there is a genuine issue of material fact, rather than one of law. The primary object of summary judgment procedure is to allow speedy disposition of a controversy without the need for trial – Nnabude Vs G N Godiscoy (W/A) Ltd (2010) 15 NWLR (Pt 1216) 365, Bona V Textile Ltd Vs Asaba Textile Mill Plc (2013) 2 NWLR (Pt 1338) 357.
Order 11 of the High Court of Kano State (Civil Procedure) Rules provides for summary judgment where it is clearly shown on the papers before the Court that the defendant has no good defence to a plaintiff’s claim. The whole purpose of the summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. A sham defence is an unreal, fake and deceitful defence. No amount of sophistry or technical pyrotechnics can launder a sham defence into a real defence to a plaintiff’s pleaded facts and verifying evidence. In other words, the summary judgment rules are specially made to help the Court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied – United Bank for Africa Plc Vs Jargaba (2007) 11 NWLR (Pt 1045) 247, University of Benin Vs Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441, Ifeanyichukwu Trading Investment Ventures Ltd Vs Onyesom Community Bank Ltd (2015) 17 NWLR (Pt 1487) 1, Matab Oil & Gas Ltd Vs Fundquest Financial Services Ltd (2020) 17 NWLR (Pt 1752) 1.
Order 11 Rule 1 of the High Court of Kano State (Civil Procedure) Rules states that where a claimant reasonably believes that the defendant has no defence to his claim, he shall file with the originating process, the statement of claim, the exhibits, the depositions of witnesses and an application for summary judgment and the said application shall be supported by an affidavit stating the grounds and a written brief in respect thereof. Order 11 Rule 4 provides that a defendant who is served with all the processes referred to in Rule 1 shall not later than the time prescribed for defence file: (i) his statement of defence; (ii) deposition of witnesses; (iii) exhibits to be used in his defence; and (iv) a written brief in reply to the plaintiff’s application for summary judgment. Order 11 Rule 5 (1) stipulates that 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 defence. Order 11 Rule 5 (2) states that where it appears to a Judge that the defendant has no good defence, the Judge may thereupon enter judgment for a claimant – The Registered Trustees of Fansum Foundations Vs Partners for Development (2021) 11 NWLR (Pt 1787) 388.
The summary judgment procedure was evolved by the rules of Court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiff’s claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the Court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled – Okoli Vs Morecab Finance (Nig) Ltd (2007) 14 NWLR (Pt 1057) 37, Samabey International Communications Ltd Vs Celtel Nigeria Limited (2013) LPELR-20758(CA). In other words, where there is no reasonable doubt on the efficacy of the claim of a claimant and the defendant does not disclose a plausible defence to the claim, the claimant is entitled to judgment under the summary judgment procedure – Torno Internazionale Nigeria Ltd Vs FSB International Bank Plc (2013) LPELR-22616(CA). The procedure is best suited for a liquidated money demand; that is a sum of money that is arithmetically ascertainable without further investigation – Maja Vs Samouris (2002) 7 NWLR (Pt 765) 78, African International Bank Plc Vs Packoplast Nigeria Ltd (2003) 1 NWLR (Pt 802) 502, A. T. S. & Sons Vs Ben Electronics Co. Nig. Ltd (2018) 17 NWLR (Pt 1647) 1, Nigeria Breweries Plc Vs National Union of Food Beverages and Tobacco Employees (2020) 7 NWLR (Pt 1724) 499.
Now, what the provisions of Order 11 of the High Court of Kano State Rules do is that where a claimant applies for judgment under the summary judgment procedure and the case of the plaintiff is suited for the procedure, the burden is put on a defendant to satisfy a trial Court that he has a good defence, or to disclose other facts entitling him to defend, otherwise judgment would be entered for the claimant. The Supreme Court has stated and restated what a defendant must show to be let in to defend under the summary judgment procedure and these are that:
i. The defence of the defendant must condescend upon particulars and as far as possible deal specifically with the plaintiff’s claim and should also clearly and concisely state what the defence is;
ii. A mere denial by the defendant of being indebted to the plaintiff is not enough, the defence should state why the defendant is not indebted in full or in part, and then state the true position;
iii. It is also 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 bona fide defence;
v. Only defences on the merit are allowed; the defendant cannot rely on sham defence;
vi. Where the defendant raises legal objection, the fact and the point of law arising therefrom must be clearly and adequately stated.
See the cases Nishizawa Vs Jethwani (1984) 12 SC 234, Macaulay Vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt 144) 283, Federal Military Government of Nigeria Vs Sani (1990) 5 NWLR (Pt 147) 688, Sanusi Brothers (Nigeria) Ltd Vs Cotia Commercio Exportacao E Importacao SA (2000) 11 NWLR (Pt 679) 566, Wema Securities & Finance Plc Vs Nigeria Agricultural Insurance Corp (2015) 16 NWLR (Pt 1484) 93, Nigeria Breweries Plc Vs. National Union of Food Beverages and Tobacco Employees (2020) 7 NWLR (Pt 1724) 499.
In the case, The Estate of Olusola Popoola Vs Access Bank Plc (2020) 16 NWLR (Pt 1751) 539, this Court explained thus:
“The purpose of the summary judgment procedure is to allow for the disposal of cases which are not contested and where it is inexpedient to allow the defendant who has no defence to waste the time of the Court. In a summary judgment procedure, the defendant has a duty in law to establish facts in such a manner that will meet the case of the claimant. A defendant’s affidavit must show that the defence he is raising is particularized and as much as possible deal with the specifics and state clearly and concisely what the defence is and what facts are relied on as supporting the position taken. It is his responsibility to raise a triable issue in the affidavit seeking to defend the claim. The defence must be a bona fide or good defence or raise a triable issue and not a sham or spurious defence. The mere filing of an affidavit that does not answer the case of the claimant will not stand to sway the Court into allowing the defendant defend the claim.”
The claim of the Respondent in the instant case was for a liquidated money demand; the sum of USD122,214.5833 being the debt due from the Appellant to the Respondent for textile materials supplied to the Appellant on credit. It was an agreed fact between the parties that the Appellant and his partner called Rabiu, carried on business under the trade name Al Mustapha Salisu Ventures and that they entered into an arrangement with the Respondent for the supply of textile materials on credit and after which they would sell and remit the payment for the goods in US Dollars. It was an agreed fact that sometime in July 2015, the Appellant and his partner had a reconciliation of accounts meeting with the Respondent and the result showed that the Appellant and his partner were in arrears in the sum of USD300,758.5833. The document by which the Appellant and his partner admitted the sum, with a promise to liquidate same, was attached as Exhibit Leeho 1.
The Respondent pontificated that the Appellant and his partner thereafter had a meeting between themselves to determine and apportion the sum owed and at the end of which the sum of USD122,214.5833 was shared to the Appellant and the Appellant caused a letter to be written to the Respondent by his Counsel, and which he countersigned, admitting in owing the said sum of USD122,214.5833. The letter, Exhibit Leeho 2, read in part thus:
“We are Solicitor to Ali who is one of the directors of AlMustapha Salihu Ventures …
Your company sequel to the agreement with our client on 27th of July, 2015 supplied goods to our client on different occasions worth USD151,514.5833. It is the instruction of our client to inform you about the position of the account in respect aforementioned transaction as follows:
1. The total amount of the money of goods supplied to our client – USD151,714.5833.
2. Total amount of the money transferred to your company – USED27.5.
3. Outstanding balance of your money with our client – N122,214.5833. …”
The letter was signed by Counsel to the Appellant and was countersigned by the Appellant. The Appellant admitted countersigning the letter, both before the lower Court and before this Court. The Appellant contended on the counter-affidavit filed before the lower Court that he did not instruct the Counsel to write the letter and that he signed same without understanding its contents because he could not read or write English language. In this appeal, however, the Appellant changed tact and his Counsel admitted that the letter was indeed written on the instructions of the Appellant and that the Appellant knew what he was signing, but he contended that the Appellant signed the letter on behalf of the partnership, AlMustapha Salihu Ventures, in the ordinary course of business and that since the act of a partner done in the ordinary course of business binds the partnership, the letter should be taken as having been done on behalf of AlMustapha Salihu Ventures.
It is elementary that an appeal is not for retrying the action, rather it is a rehearing on the Record of Appeal. The appellate Court reviews the decision of the lower Court to find out if it came to the correct decision. A party should thus be consistent in stating his case and consistent in proving it. He would not be allowed to take one stance in the trial Court then another stance on appeal. Justice is much more than a game of hide and seek. It is an attempt, our human imperfection notwithstanding, to discover the truth. A party should not be seen to approbate and reprobate or to speak from both sides of his mouth at the same time on an issue in the case – Thomas Wyatt and Son (North Nigeria) Ltd Vs Plumstead Investment Limited (2019) 12 NWLR (Pt 1687) 540, Ararume Vs Ubah (2021) 8 NWLR (Pt 1779) 511. No reasonable Court or Tribunal will come to the aid of a party who is inconsistent in the presentation of his case before it – Oliyide & Sons Ltd Vs Obafemi Awolowo University Ile-Ife (2018) LPELR-43711(SC), Trade Bank Plc Vs Pharmatek Industrial Projects Ltd (2020) 8 NWLR (Pt 1725) 124, Akande Vs IBB University, Lapai (2020) LPELR-52552(CA). In Akaninwo Vs Nsirim (2008) All FWLR (Pt. 410) 610 at 663, Tobi, JSC made the point thus:
“A litigant should not be allowed to speak at the same time or the same moment from the two sides of his mouth. He can only be allowed to speak from one side of the mouth at the same time or the same moment. He cannot make a case in his pleadings and suddenly change or reverse position to make a different case. A party cannot by his complete state of mind make an admission and later decide to change it by an amendment.”
The Court thus rejects the case made out by the Appellant on his signing of the letter, Exhibit Leeho 2 for lack of consistency in its presentation. The letter constitutes an admission of the sum claimed by the Respondent. It is settled that an admitted fact ceases to be in issue and it is deemed established – Eweje Vs O.M. Oil Industries Ltd (2021) 4 NWLR (Pt 1765) 117, Skymit Motors Ltd Vs United Bank for Africa Plc (2021) 5 NWLR (Pt 1768) 123, Passco International Ltd Vs Unity Bank Plc (2021) 7 NWLR (Pt 1775) 224, Central Bank of Nigeria Vs Dinneh (2021) 15 NWLR (Pt 1798) 91, Abimbola Vs State (2021) 17 NWLR (Pt 1806) 399. There was thus no doubt about the efficacy of the claim of the Respondent for the sum of USD122,214.5833.
In putting forward a defence to the claim, the Appellants canvassed (i) that proper parties were not before the Court; (ii) that the lower Court lacked jurisdiction to entertain the claim on the grounds that (a) proper mode of commencement of action was not followed, and (b) the transaction upon which the claim was based was illegal; (iii) that the Appellant presented a triable defence.
The Appellant predicated his contention that proper parties were not before the Court on the ground that the money in question was owed by the partnership, AlMustapha Salihu Ventures consisting of himself and his partner, Rabiu, and that it was the partnership that ought to have been sued and not him alone. It is settled law that it is the prerogative of a claimant to determine the defendants in a suit. The liability of each of the parties in the suit would be determined having regards to the pleadings and evidence led by the claimant in the light of the applicable laws. Therefore in order to determine whether a party is a proper defendant to a suit, all the Court needs to do is to examine the claim of the claimant before the Court. It is the plaintiff’s claim that gives him the right to initiate the action of the alleged wrongful act – Dantata Vs Mohammed (2000) 7 NWLR (Pt 664) 176, Adekoya Vs Federal Housing Authority (2000) 4 NWLR (Pt 652) 215, Ogbebo Vs Independent National Electoral Commission (2005) 15 NWLR (Pt 948) 376, Bello Vs Independent National Electoral Commission (2010) 8 NWLR (Pt 1196) 342.
Looking at the case made out on the processes filed by the Respondent and the reliefs sought, they were directed at the Appellant alone, and not the partnership. The rejection of the case made out by the Appellant on his signing of the letter by which he admitted personal liability for the sum claimed “removes the wind from the sail” of the contention of the Appellant that he was not the proper defendant to be sued. The contention did not thus raise any plausible defence.
The first contention of the Appellant on lack of jurisdiction was predicated on non-compliance by the Respondent with the provision contained in the Rules of Court on commencing an action during the annual vacation of the lower Court. This contention is on the procedural jurisdiction of the lower Court to hear the matter. This Court has read through the records of appeal and noticed that this complaint was not raised or canvassed by the Appellant before the lower Court and that the Appellant fully participated in the proceedings despite being aware of the alleged defect in the mode of commencing the action. The law is that there is a whole world of difference between procedural jurisdiction and the substantive jurisdiction of a Court to hear a matter and a matter of procedural jurisdiction does not qualify as “a jurisdictional challenge to the competence of the Court” that can be raised at any time.
Procedure for invoking the jurisdiction of Court should not be confused with the authority of the Court to decide matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction. It is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or Tribunal in going into matters before it are matters of procedure regulated by procedural rules. A plaintiff who has commenced an action which on the face of it is not incompetent is deemed to have invoked the presumed jurisdiction of the Court. A matter that impugns the presumed competence of the action should be raised by the opponent – Gafari Vs Johnson (1986) 5 NWLR (Pt 39) 66 at 71, Atolagbe Vs Awuni (1997) 9 NWLR (Pt 522) 536, Mobil Producing Nigeria Unlimited Vs Lagos State Environment Protection Agency (2002) 18 NWLR (Pt. 798) 1. Nigeria National Petroleum Corporation Vs Idi Zaria (2014) LPELR 22362(CA).
It is matters of substantive jurisdiction that can be raised at any time and which if resolved against a party renders the entire proceedings a nullity, not matters of procedural jurisdiction – Odu’a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523 1, Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448, Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488. A matter of procedural jurisdiction must be raised by a party before taking steps in the proceedings and where it is not so raised, it is deemed waived and cannot be raised again by the party unless there has been a substantial miscarriage of justice caused thereby –F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387, Attorney General, Kwara State Vs Adeyemo (2017) 1 NWLR (Pt 1546) 210, Akahall & Sons Ltd Vs Nigeria Deposit Insurance Corporation (2017) 7 NWLR (Pt 1564) 194, Belgore Vs Federal Republic of Nigeria. (2021) 3 NWLR (Pt 1764) 503, Bakari Vs Ogundipe (2021) 5 NWLR (Pt 1768) 1.
Where a party consents to an irregular procedure adopted by his adversary in the lower Court by participating in the proceedings without any complaint, he cannot be heard to complain on appeal that the procedure was irregular – Adama Vs State (2018) 3 NWLR (Pt 1605) 94, Ekwuruekwu Vs State (2020) 4 NWLR (Pt 1713) 114, Ajibade Vs Gbadamosi (2021) 7 NWLR (Pt 1776) 475, Aje Printing (Nig) Ltd Vs Ekiti LGA (2021) 13 NWLR (Pt 1794) 498. The Appellant cannot be heard on this complaint and it is unfounded in this appeal and cannot affect the judgment of the lower Court.
The second contention of the Appellant on lack of jurisdiction on the part of the lower Court to entertain the case of the Respondent was that the transaction upon which it was anchored was illegal because the Respondent was a foreign company, not registered in Nigeria, and was forbidden by the provisions of Section 54 and 55 of the Companies and Allied Matters Act from carrying on business in Nigeria. It is not in contest between the parties that the Respondent is a foreign company, not registered in Nigeria. The law on the extent to which a foreign company, not registered in Nigeria, can operate within Nigeria has been settled by the Courts. A foreign company has a right to sue in Nigeria for the enforcement of contracts or to recover debts owed to it and a Nigeria Court has jurisdiction to entertain such claims made by a foreign company – Nigerian Bank for Commerce & Industry Ltd Vs Europa Traders (UK) Ltd (1990) 6 NWLR (Pt 154) 36, Watanmal (Singapore) Pte Limited Vs Liz Olofin & Co Plc (1998) 1 NWLR (Pt 533) 311, Emespo J Continental Ltd Vs Automotor France S.A. (2016) LPELR-42232(CA), NU Metro Retail (Nig) Ltd Vs Tradex S.I.L (2017) LPELR-42329(SC), Citec International Estates Ltd Vs Edicomisa International Inc & Associates (2018) 3 NWLR (Pt 1606) 332. In Saeby Jernstoberi Maskinfabric A/S Vs Olaogun Enterprises Ltd (1999) 14 NWLR (Pt 637) 128, the Supreme Court reiterated the point thus:
“The principle of law that a foreign corporation, duly created according to the laws of a foreign State recognized by Nigeria, may sue or be sued in its corporate name in our Courts is part of the common law. The suggestion that a foreign company duly incorporated outside Nigeria should be first registered in Nigeria under the provision of the Companies Act, 1968 (which was then the applicable Statute) dealing with registration of foreign companies, notwithstanding that it does not fall into the category of foreign company as defined by that Act, is too preposterous and patently inimical to international trade to merit any prolonged or serious consideration. It suffices to say the appellant company, which was admitted by the respondent to be limited liability company with its registered office in Copenhagen properly sued in its corporate name.”
Where, however, the contract sought to be enforced or the debt sought to be recovered arose in the course of the foreign company carrying on business within Nigeria, without having been first duly registered in accordance with the provisions of the Companies and Allied Matters Act, the foreign company is barred from suing as the transactions sought to be enforced are deemed illegal and the Nigeria Courts lack jurisdiction to enforce an illegal contract – Citec International Estates Ltd Vs Edicomisa International Inc & Associates supra.
Now, Section 54 of the Companies and Allied Matters Act which imposes the restriction on the operation of foreign companies in Nigeria states in its subsection (1) that:
“Subject to Sections 56 to 59 of this Act, every foreign company which before or after the commencement of this Act was incorporated outside Nigeria, and having the intention of carrying on business in Nigeria, shall take all steps necessary to obtain incorporation as a separate entity in Nigeria for that purpose, but until so incorporated, the foreign company shall not carry on business in Nigeria or exercise any of the powers of a registered company and shall not have a place of business or an address for service of documents or processes in Nigeria for any purpose other than the receipt of notices and other documents, as matters preliminary to incorporation under this Act.”
What is inferable from this provision is that a foreign company will be said to be carrying on business in Nigeria when it has a place of business in the country, when it exercises any of the powers of a registered company under the Act or when it has an address for service of documents or processes in Nigeria for any purpose other than the receipt of notices and other documents, as matters preliminary to its incorporation. Reading through the processes filed by the Respondent in support of its claims and the responses filed thereto by the Appellant, nowhere therein was it stated or suggested that the Respondent had a place of business or an address for service of documents or processes in Nigeria.
The case of the Respondent was that it was an importer and exporter of textile materials and that it established business contacts in Nigeria and to whom it supplied textile materials on credit and that the contacts remit repayment to it after selling the materials. It was its case that it was in the course of such arrangement that the Appellant incurred a debt in the sum claimed for. The Appellant did not counter these assertions in his responses. The transactions leading up to the debt did not thus arise in the course of the Respondent carrying on business in Nigeria and it is not illegal. The Respondent had a right to sue for the debt and it was an action over which the lower Court had and properly exercised jurisdiction.
Reading through the contents of the counter-affidavit of the Appellant to the motion for summary judgment, it is clear that it presented no recognizable, plausible or iota of defence to the claims of the Respondent. All the depositions therein were aimed at diverting the attention of the lower Court from the admitted liability of the Appellant. The matter was one properly suited for hearing under the summary judgment procedure and the lower Court was correct when it entered judgment for the Respondent thereon. The first issue for determination is resolved in favor of the Respondent.
Issue Two
Whether the lower Court breached the Appellant’s right to fair hearing at any stage of the proceedings.
The concept of fair hearing adumbrated under this issue for determination is the same as fair trial and it entails so much in the judicial process. As a matter of law, it is the pivot upon which the entire judicial process or the administration of justice revolves. It is the keystone of the trial process as no trial can be sustained unless it accords with the principles of fair hearing, which also involves the twin common law rules of natural justice rules, audi alteram partem and nemo judex in causa sua – Daniel Vs Federal Republic of Nigeria (2021) 6 NWLR (Pt 1771) 20, Destra Investment Ltd Vs Federal Republic of Nigeria (2021) 6 NWLR (Pt 1771) 57, Central Bank of Nigeria Vs Bako (2021) 11 NWLR (Pt 1786) 122.
Fair hearing postulates that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligations. It is an indispensable requirement of justice that an adjudicating authority, to be fair and just, shall hear both sides, giving them ample opportunity to present their case. Accordingly, a hearing can only be said to be fair when, inter alia, all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused or denied a hearing or is not given an opportunity to be heard, such hearing cannot qualify as a fair hearing under the audi alteram partem rule – Ararume Vs Ibezim (2021) 8 NWLR (Pt 1779) 543, John Holt Plc Vs Nwabuwa (2021) 11 NWLR (Pt 1787) 325, Muyideen Vs Nigerian Bar Association (2021) 13 NWLR (Pt 1794) 393, National Ear Care Center Vs Nnadi (2021) 17 NWLR (Pt 1805) 365.
This right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground. It is perhaps to underscore the inviolability of this right of a party to a dispute to fair hearing that a provision guaranteeing the right to every citizen of this country is firmly ensconced in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999. Hence, fair hearing is not only a common law right but also a constitutional right – Agip (Nig) Ltd Vs Agip Petroli International & Ors (2010) 5 NWLR (Pt 1187) 348, Agbiti Vs Nigerian Navy (2011) 4 NWLR (Pt 1236) 175, Adebowale Vs Ademola (2021) 4 NWLR (Pt 1767) 399, Dasuki Vs Federal Republic of Nigeria (2021) 9 NWLR (Pt 1781) 249.
The right to fair hearing does not, however, exist in absolute terms. The concept of fair hearing postulates that it is the duty of a Court to create a conducive environment and atmosphere for a party to enjoy his right to fair hearing, but it does not say that it is part of the duty of the Court to make sure that the party takes advantage of the atmosphere or environment so created to exercise his right to fair hearing. It is not part of the business of a Court to compel a party to exercise his right to fair hearing. Where a party fails, refuses or neglects to take advantage of or utilize the environment created by a Court to exercise his right of fair hearing, he cannot turn around to complain of lack of fair hearing – Independent National Electoral Commission Vs Musa (2003) 3 NWLR (Pt 806) 72, Dantata Vs Mohammed (2012) 8 NWLR (Pt 1302) 366, National Films & Video Censors Board Vs Adegboyega (2012) 10 NWLR (Pt 1307) 45, Ayoade Vs State (2020) 9 NWLR (Pt 1730) 577, Ndukwe Vs Union Bank of Nigeria Plc (2021) 4 NWLR (Pt 1765) 165.
The question whether a party has been afforded an opportunity to exercise his right of fair hearing depends upon a careful consideration of the facts and circumstances of each case.
The complaint of the Appellant under this issue for determination was that the lower Court heard and determined the Respondent’s motion for summary judgment before the expiration of the time allowed him by the Rules of Court to file his statement of defence.
As stated earlier, Order 11 Rule 4 of the High Court of Kano State Rules provides that a defendant who is desirous of defending an action commenced under the summary judgment procedure should file his statement of defence, deposition of witnesses, exhibits to be used in his defence and a written brief in reply to the plaintiff’s application for summary judgment. The provision did not say that a motion for summary judgment could not be heard without a defendant first having filed these processes.
The Appellant, upon being served with the processes of the Respondent, chose on his own to file only a notice of preliminary objection, a counter-affidavit to the motion for summary judgment and written brief in reply. The Appellant did not file a statement of defence, deposition of witnesses, and exhibits to be used in his defence, by choice. There is nothing showing that the Appellant was stopped or in any way prevented by the lower Court or by anyone from filing those processes. The records of appeal show that when the matter came up on the 6th of September, 2016, the lower Court, with the consent of Counsel to both parties, adjourned the case to the 9th of September, 2016 for the hearing of both the preliminary objection of the Appellant and the substantive motion for judgment of the Respondent. Counsel to the Appellant, at the time of consenting to the hearing, was aware that the Appellant was yet to file a statement of defence and accompanying processes and no step was taken to file the processes before the date for hearing.
The records show that on the 9th of September, 2016, Counsel to the Appellant informed the lower Court that he was ready for the hearing of both the preliminary objection and the substantive application and he commenced the hearing by arguing the preliminary objection. The records show that in the course of arguing the substantive application for judgment, Counsel to the Respondent stated that the Appellant did not comply with the provisions of the Rules requiring him to file a statement of defence with accompanying processes and he prayed the lower Court to strike out the counter-affidavit and the written brief. The records show that Counsel to the Appellant responded by urging the lower Court to consider the counter-affidavit and the written brief in determining the motion for judgment and that the failure to file a statement of defence with accompanying processes was no big deal and the Appellant still had time to file them.
In other words, the failure to file the Appellant to file a statement of defence with accompanying processes in contesting against the Respondent’s motion for summary judgment was a personal decision taken by the Appellant and his Counsel, perhaps as a legal tactic. The Appellant and his Counsel were comfortable defending the motion with the preliminary objection, counter-affidavit and written brief. The records show that the lower Court considered the preliminary objection, the counter-affidavit and written brief of the Appellant in making its findings. The hearing and determination of the motion for summary judgment in the absence of a statement of defence with accompanying processes cannot thus be said to constitute a breach of the Appellant’s right to fair hearing in the circumstances. The contention of the Appellant was totally misconceived. The second issue for determination is resolved in favour of the Respondent.
This appeal is downright frivolous and a blatant waste of scarce judicial time. The appeal fails with ignominy and it is dismissed. The judgment of the High Court of Kano State delivered in Suit No K/358/2016 by Honorable Justice Nasiru Saminu on the 16th of September, 2016 is hereby affirmed. The Appellant is awarded the cost of the suit assessed at N200,000.00. These shall be the orders of the Court.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA and I am in complete agreement with the reasoning and conclusion reached therein. The appeal is without merit and it is accordingly dismissed. I abide by all other consequential orders as contained in the lead judgment.
USMAN ALHAJI MUSALE, J.C.A.: I had the privilege of reading in draft, the leading judgment just delivered by my learned brother HABEEB ADEWALE. O. ABIRU, JCA. I am in agreement with the reasoning and conclusions reached by him in this appeal.
For the reasons ably given by him, I also dismiss the appeal and affirm the decision of the Court below.
Appearances:
M. A. Annas For Appellant(s)
A. Abdullahi, with him, G. A. Badawi For Respondent(s)
