NIGERIAN ELECTRICITY LIABILITY (MGT) CO. LTD v. WHIRLPOOL LEGAL CONSULT
(2021)LCN/14983(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, February 02, 2021
CA/A/176/2020
RATIO
JUDGMENT: NATURE OF SUMMARY JUDGMENT PROCEDURE
As correctly stated by the Court below, the Summary Judgment procedure is akin to and also referred to as the undefended list procedure. Judicial authorities abound on what the Undefended List procedure means by the apex Court as well as this Court. Put simply, it is a procedure which enables a Plaintiff to obtain judgment in a suit for a liquidated sum within the shortest possible time on affidavit evidence without the technicalities of pleadings, where the Defendant has no defence to the suit. See the cases of AGBABIAKA V. F.B.N PLC. 2007 6 NWLR PT. 1029 25, THOR LIMITED V. FCMB LIMITED 2005 14 NWLR PT. 945 696 710, PLANWELL WATERSHED LTD. V. OGALA 2003 18 NWLR PT. 852 478, EKULO FARMS LTD. V. UNION BANK OF NIG. PLC. 2006 4 S.C. PT II P. 22-24, CHIEF AKINYEMI V. GOVERNOR OF OYO STATE & ANOR. 2003 FWLR PT. 40 P. 1683, FMG V. SANNI 1990 4 NWLR PT 147 P. 685 and the learned author, ‘lai Oshitokunbo Oshisanya in ALMANAC OF CONTEMPORARY JUDICIAL RESTATEMENT P. 271. It is a procedure for economy of time and resources and to ensure that the Defendant is disallowed from putting the Plaintiff through unnecessary and avoidable expense of proving the obvious. However, where the Defendant decides to challenge the claim of the Plaintiff he must file a notice of intention to defend the suit together with an affidavit disclosing a defence on the merit. The Defendant’s affidavit with the notice of intention must disclose a prima facie defence. Authorities abound on what is expected and acceptable as good defence which ought to cause the trial Judge to allow a Defendant to defend. Where this is the case, the action will be set down for trial as under the General or Ordinary Cause list. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
EVIDENCE: HOW SHOULD A PARTY WHO ASSERTS PROVE
It is trite that the Respondent who asserts must prove by cogent and credible evidence and in respect of the procedure adopted by the Respondent, Summary Judgment, the sum being claimed must be liquidated. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Peter Olabisi Ige Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Between
NIGERIAN ELECTRICITY LIABILITY MANAGEMENT COMPANY LIMITED APPELANT(S)
And
WHIRLPOOL LEGAL CONSULT RESPONDENT(S)
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the High Court of Niger State, Suleja, delivered on November 19th, 2019 wherein the Court found in favour of the Respondent (the Plaintiff at the Court below) pursuant to Order 11 Rule 5 (2) of the Rules of Civil Procedure of the Niger State High Court against the Appellant (the Defendant at the Court below).
As garnered from the printed Record before this Court, the Respondent was briefed by the Appellant to pursue one of its matters in Court. According to the Respondent, a sum of N5,000,000.00 was agreed with the Appellant as his legal fees. Pursuant to the brief, in 2013 he filed an appeal before this Court in Appeal No. CA/A/308/2014 between Power Holding Company of Nigeria Plc. V. Abdullahi Noma & 10 Ors on behalf of the Appellant. The appeal had to be withdrawn and it was struck out when the Court found that Terms of Settlement were filed on behalf of the parties for settlement out of Court however, not by the Respondent. Thereafter the Respondent wrote letters to the Appellant demanding his professional fees in the sum of Five Million
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Naira, (N5,000,000.00) which the Appellant refused to pay. The Respondent then sued the Appellant and claimed by way of summary judgment for his fees as follows:
a. Summary judgment against the Defendant in the sum of Five Million Five Hundred Thousand Naira (N5,500,000.00) being the total amount due to the Plaintiff as professional fees.
b. 20% interest on the sum of Five Million Five Hundred Thousand Naira (N5,500,000.00) monthly from the date of filing this suit until judgment and thereafter interest at 15% from the date of Judgment until final liquidation.
c. General damages in the sum of Two Million Naira (N2,000,000.00)
d. And such further Order(s) as the Court may deem fit to make in the circumstance.”
THE PRELIMINARY OBJECTION
The Respondent by Notice of Motion filed September 9th, 2020 prayed for the striking out of Ground 1 of the Notice of Appeal for incompetence, to deem Ground 2 of the same Notice as abandoned and to dismiss the appeal for incompetence in its entirety. The reason being that ground 1 did not emanate from the judgment and ground 2 being abandoned. In response to the objection the Appellant filed
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Counter-affidavit on November 2nd, 2020 of 18 paragraphs and both sides filed and exchanged written addresses as allowed by this Court.
The Appellant by its Notice of Appeal filed along therewith two (2) grounds of appeal as follows without the particulars:
GROUND ONE …” The learned trial judge erred in law when he considered the plaintiffs claim under order 11 of the Niger State High Court Civil Procedure Rules 2018 and entered summary judgment against the appellant/defendant in the sum of N5.5 Million being the total amount due to the plaintiff as professional fees.”
GROUND TWO …. The learned trial judge misdirected himself when (sic) held as follows:
“The main essence is to fast track proceedings which will otherwise being (sic) prolonged unnecessarily without legal justification at the expense of both the plaintiff and the court.”
See pages 94 and 95 of the Record.
I have very carefully considered the application, written addresses on both sides said Grounds of appeal, 1 and 2 and will simply hold that, where both Issues presented by the Appellant which are already
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stated herein are read calmly, one will find that they emanate from the foregoing Grounds 1 and 2 of the Appellant’s Notice of Appeal on pages 94 and 95 of the Record. If that be the case, the objection cannot be sustained and is hereby dismissed. Respectfully, in my view and humbly, for economy of time and resources, the objection raised herein should not have arisen and rather allow time and resources for the main appeal. Notwithstanding and being the penultimate Court one has given consideration to same.
The parties in compliance with the Rules of this Court filed their briefs. The appellant’s was filed on May, 13th 2020, deemed as properly filed and served on September, 21st 2020 and was settled by Victor Nwadigo Esq. and the Respondent’s by J. G. Taidi Esq., was filed June 26th, 2020 and deemed as properly filed and served on September, 21st 2020.
The Appellant submitted two (2) Issues as follows:
a) Whether having regard to the Plaintiff’s claim the trial judge ought to consider the Plaintiff’s claim under Order 11 of the Niger State High Court Civil Procedure Rules and enter summary judgment against the Appellant/Defendant in the sum of
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Five Million Five Hundred Thousand Naira (N5,500,000.00)
b) Whether the trial judge took judicial notice of the Electricity Power Sector Reform Act, subsidiary legislation and the transfer instrument between PHCN AND NELMCO thereby making it appropriate to admit the Plaintiff’s claim under the summary judgment procedure.
The Respondent submitted the following two (2) Issues:
1) Whether the trial Court was right to have considered the Respondent’s claim under Order 11 of the Niger State High Court Civil Procedure Rules.
2) Whether the trial Court was under any obligation whatsoever to take Judicial Notice of the transfer instrument between PHCN and NELMCO.
I have carefully considered the foregoing Issues and as empowered reformulated the Appellant’s Issues into one, satisfied that it will determine this appeal fairly and justly. The singular issue goes thus:
“Whether the Court was right in the light of the evidence before it to have entered Judgment in favour of the Respondent under the Summary Judgment Procedure.”
APPELLANT’S SUBMISSION
The learned Appellant’s Counsel, Mr. Victor Nwadogo Esq., argued
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that the Respondent failed to show a nexus between the instruction given to him by the Abuja Electricity Distribution Company and the Nigerian Electricity Liability Management Company Limited with the Electric Power Sector Reform Act, save its assertion that the latter was incorporated to take over and mange the non-core assets, all liabilities and other obligations not taken over by the successors companies of the Power Holding Company of Nigeria. Further that the Respondent was unable to show the Court that its brief and its liability were transferred to the later Company, Nigerian Electricity Liability Management Company Limited, in accordance with the Electric Power Sector Reform Act. The judgment he further argued also failed to that the transfer instrument between the PHCN and NELMCO was considered as the Company that instructed the Respondent was different from the NELMCO, neither was it presented to the Court that the Respondent’s transaction, filing of the appeal was covered by NELMCO. He submitted therefore that the Appellant was exonerated from liability and the Respondent ought not to have brought the action against the Appellant.
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In support, he cited of IDUFUEKO V. PFIZER PRODUCTS LTD & ANOR. 2014 LPELR-22999 SC, LAKANMI V. ADENE 2003 FWLR PR. 163 24 SC and FCDA V. NAIBI 1990 3 NWLR PT. 138 270 SC. In conclusion, he urged that the appeal be allowed.
RESPONDENT’S SUBMISSION
Mr. Taidi Esq., for the Respondent submitted that the Appellant refused to respond or appear in Court in spite of being served all the processes by the Court, therefore, no intention to defend was filed and the Respondent’s affidavit remained uncontroverted and admitted and in support, cited the case of BUHARI V. OBASANJO 2003 17 NWLR PT. 850 587, AKPABUYO L.G. V. EDIM 2003 1 NWLR PT. 800 23, AKWA V. COP 2003 4 NWLR PT. 811 461. Further that the submission by the Appellant on Issue 1 was an attempt to review and criticize the Respondent’s statement of claim, and an evidence-giving spree, not a brief and showed that the Appellant failed to appreciate Order 11 of the Niger State Civil Procedure and cited the cases of AJAYI SOYOYE V. AREMU MUSTAPHA 2013 LPELR-20347 and EZUMA V. NKWO MARKET COMMUNITY BANK LTD 2000 FWLR PT. 28 2243. He argued that with the Respondent’s affidavit there was a prima facie case
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made against the Appellant and stated the case of STATE V. NWACHINEKE 2008 ALL FWLR PT. 398 204. In conclusion, he urged that the appeal be dismissed with punitive costs.
POSITION OF THE COURT
SOLE ISSUE
“Whether the Court was right in the light of the evidence before it to have entered judgment in favour of the Respondent under the Summary Judgment Procedure.”
I have very carefully considered the Record before this Court and the briefs of both sides and having so very carefully done, I shall proceed in the light of the sole issue adopted by the Court herein as follows:
As correctly stated by the Court below, the Summary Judgment procedure is akin to and also referred to as the undefended list procedure. Judicial authorities abound on what the Undefended List procedure means by the apex Court as well as this Court. Put simply, it is a procedure which enables a Plaintiff to obtain judgment in a suit for a liquidated sum within the shortest possible time on affidavit evidence without the technicalities of pleadings, where the Defendant has no defence to the suit. See the cases of AGBABIAKA V. F.B.N PLC. 2007 6
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NWLR PT. 1029 25, THOR LIMITED V. FCMB LIMITED 2005 14 NWLR PT. 945 696 710, PLANWELL WATERSHED LTD. V. OGALA 2003 18 NWLR PT. 852 478, EKULO FARMS LTD. V. UNION BANK OF NIG. PLC. 2006 4 S.C. PT II P. 22-24, CHIEF AKINYEMI V. GOVERNOR OF OYO STATE & ANOR. 2003 FWLR PT. 40 P. 1683, FMG V. SANNI 1990 4 NWLR PT 147 P. 685 and the learned author, ‘lai Oshitokunbo Oshisanya in ALMANAC OF CONTEMPORARY JUDICIAL RESTATEMENT P. 271. It is a procedure for economy of time and resources and to ensure that the Defendant is disallowed from putting the Plaintiff through unnecessary and avoidable expense of proving the obvious. However, where the Defendant decides to challenge the claim of the Plaintiff he must file a notice of intention to defend the suit together with an affidavit disclosing a defence on the merit. The Defendant’s affidavit with the notice of intention must disclose a prima facie defence. Authorities abound on what is expected and acceptable as good defence which ought to cause the trial Judge to allow a Defendant to defend. Where this is the case, the action will be set down for trial as under the General or Ordinary Cause list.
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From the Record, and the processes filed by the Respondent, one is unable to agree with the Court below that the Respondent’s matter should be by Summary Judgment. The brief of the Respondent, from the appellant. Exhibit A, which the Court relied upon amongst, others did not contain a specific sum or indeed Five Million Naira (N5,000,000.00) as demanded by the Respondent as his professional fee. It states that the Respondent’s bill should be forwarded to their office for vetting and settlement at the conclusion of the matter. At the conclusion of the matter from the Record, one is unable to find from the Record that both parties had the vetting and settlement session of whatever sum agreed by both sides as the Respondent’s professional fee. It will be wrong therefore, for the Court to accept the sum of N5,000,000.00 claimed by the Respondent as the agreed professional fees. The Appellant might have failed to respond as seen in the Record in spite of service of the notice of the matter on it. It is trite that the Respondent who asserts must prove by cogent and credible evidence and in respect of the procedure adopted by the Respondent, Summary Judgment, the sum being claimed
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must be liquidated. Whether or not the Appellant showed up was immaterial once there was due service on it and so long as the claim of the Respondent was duly proved. In my view and humbly, the Respondent’s claim that there was an agreement by the Appellant to pay. N5,000,000.00 which was not documented and no evidence was provided by the Respondent, held no water and didn’t help his case. Proof in civil matters is by preponderance of evidence or balance of probabilities. Further in my view, the burden did not shift to the Appellant as the Respondent did not establish its claim of N5 Million.
It is pertinent to mention that the name of the party which briefed the Respondent in July 2013 was PHCN Abuja Electricity Distribution Company by January, April and August 2019 when the Respondent was writing to report on the Steps he had taken the appeal he filed on behalf of his client, the name was different, it was Nigerian Electricity Liability Management Company Limited at a different name entirely and address. In my considered view, there was need for the Respondent to explain whether the two names represented the same institution and why the PHCN Abuja
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should be responsible for the appeal the Respondent instituted.
The difference in the name of the party commenced the relationship with the Respondent and the one from which he was demanding payment is an issue should have been explained is also and clarified in terms of liability versus the claim of the Respondent. The relationship started with the PHCN Abuja Electricity Distribution Company, the bill was forwarded to Nigerian Electricity Liability Company Limited as afore stated. Further, one needs to note that the Respondent claimed 20% interest on the N5 Million and Five Hundred Thousand Naira monthly from the date of filling this suit until judgment and thereafter interest at 15% from the date of judgment until final liquidation and general damages in the sum of Two Million Naira (N2,000,000.00). One wonders if the percentages asked for were liquidated claims too. Liquidated claim or money demand is described as an amount previously agreed or fixed by the parties payable under or by a contract and capable of ascertainment as a matter of arithmetic without any further investigation.
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See JUDICIAL LAW DICTIONARY by the learned Author, B. P. ISHAKU page 244 and the cases of ALHAJI M. U. & SONS LIMITED V. LION BANK OF NIGERIA PLC. 2006 2 NWLR PT. 964 288, SURVEYOR AKPAN V. AKWA IBOM PROPERTY & CONSULTANCY SERVICES CO. LTD. 2013 5-6 SC PT. II 114, EPE L. G. V. KESINRO 2009 4 NWLR PT. 1131 405 and U.P.S. LIMITED V. UFOT 2006 2 NWLR PT. 963 1.
This Court in the case of OGBONNA V. CHIEF UKAEGBU 2005 ALL FWLR PT. 288 P. 1170-1 C.A held that, a claim of 20% interest per annum until judgment and 10% thereafter till final liquidation is a veritable claim that has to be transferred to the general cause list and not under the undefended list as it falls outside the contemplation of liquidated money demand under Summary Judgment procedure.
In the result, this appeal succeeds, the judgment of the Court below delivered on November 19th, 2019 is hereby set aside. The Respondent’s Suit is hereby remitted to the Chief Judge of Niger State High Court for re-assignment to another judge to be tried under the General Cause list.
Parties to bear their individual costs.
STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned
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brother, Elfrieda Oluwayemisi Williams-Dawodu, JCA.
My learned brother has reasoned out well the issue raised in this appeal. I agree with the reasoning and conclusion that his appeal be allowed. I do allow the appeal and I abide by the consequential orders as made in the lead judgment.
PETER OLABISI IGE, J.C.A.: I agree.
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Appearances:
Mr. Victor Nwadigo For Appellant(s)
Mr. J. G. Taid For Respondent(s)
