NWOBU v. ANARA (2020)

NWOBU v. ANARA

(2020)LCN/14149(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/E/532/2016

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

ONYEBUCHI NWOBU APPELANT(S)

And

CHIEF AMOBI ANARA RESPONDENT(S)

RATIO

FACTORS TO BE CONSIDERED IN THE DETERMINATION OF SUMMARY JUDGMENT

In the determination of an application for summary judgment, the Court considers the averments in the pleadings of both parties, the depositions in support of the pleadings, the motion and any additional evidence adduced by the parties to determine whether there is a genuine issue of material fact rather than one of law. See BONA V. TEXTILE LTD & ANOR V. ASABA TEXTILE MILL PLC (SUPRA). The Court must be satisfied that the defence raised is a real and genuine defence on the merits, and not a flimsy, fanciful, frivolous defence raised to prolong the case or play for time. See UNITED BANK FOR AFRICA PLC & ANOR V. ALHAJI BABANGIDA JARGABA (SUPRA). PER BOLAJI-YUSUFF, J.C.A.

PROCEDURE FOR SUMMARY JUDGMENT

This appeal is predicated upon the provisions of ORDER 11 RULES 1 – 6 OF THE HIGH COURT (CIVIL PROCEDURE) RULES, 2006 OF ANAMBRA STATE (hereinafter called “The Rules”) which provides that:
1. Where a Plaintiff believes that there is no defence to his claim, he shall file with his originating process the statement of claim, the exhibits, the depositions of his witnesses and an application for summary judgment which application shall be supported by an affidavit stating the grounds for his belief and a written address in respect thereof.
Delivery of extra copies
2. A Plaintiff shall deliver to the Registrar as many copies of all the processes and documents referred to in Rule 1 of this Order as there are Defendants.
Service
3. Service of all the processes and documents referred to in Rule 1 of this Order shall be effected in the manner provided under Order 7.
Where Defendant intends to defend
4. Where a party served with the processes and documents referred to in Rule 1 of this Order intends to defend the suit he shall, not later than the time prescribed for defence, file:
(a) his statement of defence.
(b) depositions of his witnesses.
(c) Exhibits to be used in his defence; and
(d) A written address in reply to the application for summary judgment.
Where defendant has good defence or has no good defence or has good defence to part of the claim
5. (1) Where it appears to a Judge that a Defendant has a good defence and ought to be permitted to defend the claim he may be granted leave to defend.
(2) Where it appears to a judge that the defendant has no good defence the Judge may thereupon enter judgment for a plaintiff.
(3) Where it appears to a Judge that the defendant has a good defence to part of the claim but no defence to other parts of the claim, the Judge may thereupon enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence.
Where there are several Defendants
6. Where there are several Defendants and it appears to a Judge that any of the Defendants has a good defence and ought to be permitted to defend the claim and other defendants have no good defence and ought not to be permitted to defend the former may be permitted to defend and the Judge shall enter judgment against the latter.” PER BOLAJI-YUSUFF, J.C.A.

LIABILITY OF AN AGENT OF A DISCLOSED PRINCIPAL

The general principle of law regarding liability of an agent of a disclosed principal is that an agent acting on behalf of a known and disclosed principal incurred no liability because an act done by the agent is the act of the principal. However, it is not in all situations that an agent of a disclosed principal will not be liable for the act of a principal. Whether an agent is personally liable for his action and/or the action of his principal is determined by the nature and terms of the contract and the surrounding circumstances. See ASAFA FOODS FACTORY LTD. V. ALRAINE (NIG.) LTD.(2002) LPELR-570(SC) AT 18-19 (E-B). PER BOLAJI-YUSUFF, J.C.A.

WHETHER OR NOT AN AGENT WHO PARTICIPATED IN A TRANSACTION TAINTED WITH FRAUD WILL BE PERSONALLY LIABLE FOR THE FRAUD

An agent who knowingly participated in a transaction tainted with fraud as in this case is personally liable for the fraud. In FBN V. OZOKWERE (2013) LPELR- 21897 (SC) AT 17 (A-E), the Supreme Court considered the issue of when an agent will be liable to repay money which is paid to such agent for the use of his principal and held Per ONNOGHEN, J.S.C as follows:
“In Bowstead on Agency, 12th Ed. Article 124 thereof, the learned author stated as follows:- “Where money is paid to an agent for the use of his principal, and the circumstances of the case are such that the person paying the money is entitled to recover it back, the agent is personally liable to repay such money in the following cases namely:- (a) … (b)… (c) where the money is paid under a mistake of fact, or under duress, or in consequence of some fraud or wrongful act, and repayment is demanded of the agent, or notice is given to him of the intention of the payer to demand payment, before he has in good faith paid the money over to, or otherwise dealt to his detriment with the principal in belief that the payment was a good and valid payment.” PER BOLAJI-YUSUFF, J.C.A.

BURDEN OF PROOF OF SUMMARY JUDGMENT

In a summary judgment procedure, the law places the burden on the defendant to disclose sufficient facts that satisfies the Court that he has a good defence to the plaintiff’s claim. In MACAULAY V. NAL MERCHANT BANK LTD. (1990) LPELR- 1801 (SC) AT 61 (B-F), the Supreme Court Per KARIBI-WHYTE, J.S.C. held that:
“Under the Order 10 procedure under which this action was brought, a defendant can only be allowed by the trial Judge to defend the action where he is satisfied: (a) that the defendant has a good defence to the action on the merits, or (b) that the defendant has disclosed such facts as may be deemed sufficient to entitle him to defend the action generally. The object of the Order 10 procedure is to enable plaintiffs whose claim is unarguable in law and where the facts are undisputed, and it is inexpedient to allow a defendant to defend for mere purposes of delay to enter judgment in respect of the amount claimed. See Jones v. Stone (1894) A.C. 122. The maxim interest rei publicae ut sit finis litiumis the mother of this procedure as in all forms of action which seek to reduce the volume of litigation.” PER BOLAJI-YUSUFF, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Anambra State, Awka Judicial Division delivered in suit no. A/142/2016 on 27th July, 2016. The respondent in this appeal instituted the suit wherein he claimed the following reliefs against the appellant and Chief Chigbata Okoli:
(a) “An order of Court on the defendants jointly and severally to refund to the plaintiff the sum of Five Hundred Thousand Naira (N500,000.00) being amount the Plaintiff paid to the Defendants to enable them process the Certificate of Occupancy in respect of plot OS/19 Central Business District, Awka which the 2nd defendant intended to sell to the Plaintiff which turned out to be fake.
(b) An order of Court on the Defendants to refund to the plaintiff the sum of Two Hundred Thousand Naira (N200,000.00) being the legal fee paid counsel to prosecute this suit for the Plaintiff which would not have been incurred if the defendants had refunded the money since year 2011, it was requested for.
(c) An order of Court on the Defendants to pay the plaintiff 12.5% interest on the amount paid

the Defendants to secure the Certificate of Occupancy which turns out to be fake from the 3rd day of June, 2011 until judgment is given.
(d) An Order that the Defendants pay the Plaintiff 5% of the judgment sum until judgment sum is liquidated.”

After the institution of the suit, it was discovered that Chief Chigbata Okoli had died and his name was struck out from the suit on 16th May, 2016. The case of the respondent was that sometimes in the year 2011, the Appellant approached him with an offer to sell to him a land allegedly allocated to the deceased which the deceased had authorized him (the Appellant) to sell. The Appellant arranged a meeting at which the Appellant, the Respondent and the deceased negotiated and agreed on the sum of eight million naira (N8m) as the price of the land. The Appellant and the deceased informed the Respondent that they were processing the certificate of occupancy of the land but needed money to continue the processing. The deceased directed the respondent to pay five hundred thousand naira (N500,000:00) as deposit for the sale of the land to the Appellant to enable the appellant continue the process of

obtaining the certificate of occupancy of the land. The Respondent having known the Appellant believed the transaction to be genuine. He paid the sum of five hundred thousand naira into the Appellant’s Diamond Bank Account at Mohammed Buhari Way Branch, Garki, Abuja. When the respondent did not hear anything from the appellant and no certificate of occupancy was shown to him, he briefed A.N. Onurah Esq., to conduct a search at the Ministry of Lands, Survey and Urban Planning, Awka to know the authenticity of the allocation paper given to him by the appellant. The search report revealed that there was no such allocation and that the allocation letter did not emanate from the ministry. All efforts to recover the money from the Appellant and the deceased failed.

The Respondent filed a writ of summons, statement of claim and an application for summary judgment which was supported by an affidavit of 25 paragraphs, several documents and written address. The appellant filed a statement of defence, an eleven paragraph deposition in support of the statement of defence and a written address in opposition to the motion. The Respondent filed a reply to the

Appellant’s statement of defence and a reply on point of law to the Appellant’s written address.

The Court considered the processes filed and exchanged by the parties, refused leave to defend the suit and entered judgment in favour of the Respondent as follows:
(a) “I order the Defendant jointly and severally to refund to the plaintiff the sum of Five Hundred Thousand Naira (N500,000.00) being the amount the Plaintiff paid to the defendants to enable the process of the certificate of occupancy in respect of plot 05/19 Central Business District Awka which the 2nd defendant intended to sell to the plaintiff which turned out to be fake.
(b) I order the Defendants to refund to the plaintiff the sum of (N100,000.00) being the legal fee paid to counsel to prosecute this suit which would not have been incurred if the Defendants had refunded the money since year 2011 it was requested for.
(c) On the 3rd reliefs for payment of 12.5% interest on the amount paid the defendant to secure the certificate of occupancy which turned out to be fake from 3rd day of June 2011 until judgment is given, the relief fails, it was held in the case of

Dynamic Ltd. V. Ibrahim (2002) 8 NWLR Part 768 at 63 Ratio 4 on when interest is payable on debt “interest is not payable on a debt or loan in the absence of an express agreement to the effect between the parties. The only other situation in which interest could be paid arises from the custom or usage of the particular trade or business, where the later is alleged, evidence should be led to prove that such trade, business and the custom involved in relation to making the payment of interest mandatory.”
In the instant case, there is no express provision for interest, the relief therefore fails.
(d) I order the defendant to pay the plaintiff 5% of the judgment sum until judgment sum is liquidated.
I asses cost at N20,000.00 in favour of the plaintiff.”

Aggrieved by the judgment, the Appellant filed a notice of appeal on 2nd September, 2016 raising five grounds of appeal. The appellant’s brief of argument was filed on 2/12/2016. Respondent’s brief of argument was filed on 12/1/2017. Appellant’s reply brief was filed on 23/2/17. The appellant formulated the following issues for determination:

“Whether the Appellant’s defence disclosed a triable issue to warrant the matter being transferred to the General Causes List? (Ground 3, 4 and 5)
2. Whether the learned trial Judge rightly held the Appellant’s averments to be mere denial? (Ground 1)”

The respondent formulated the following issues for determination:
1. “Whether in view of the statement of defence filed by the Appellant in the Court below juxtaposing same with all the processes filed in the suit at the Court below, the lower Court was right in law to hold that the Appellant did not disclose any genuine defence to warrant the Court to transfer the matter to the general cause list.
2. Whether the Appellant admitting paragraphs 5 and 6 of the statement of claim, the Appellant will not be liable to the reliefs of the respondent.”

I have considered the grounds of appeal and the issues formulated by counsel. In my view, the issue which calls for determination in this appeal is whether the lower Court was right in law to hold that the appellant did not disclose any genuine defence to warrant a transfer of the suit to the general cause list.

The Appellant’s counsel submitted that it is the law that where there is any conflict in the evidence in the case on the undefended list, the proceedings must go to trial as the calling of evidence is the only way by which the conflict can be resolved. It is his contention that the facts deposed to in paragraph 5 of the affidavit in support of the motion for summary judgment and the averments in paragraphs 3, 4 and 5 of the statement of defence clearly show that there are conflicts in the case of the parties and the Court below ought to have call for oral evidence to resolve the conflict. He referred to ALHAJI AHMED YA’U V. CITY SECURITY LIMITED (2003) FWLR (PT. 165) 498 AT PAGE 506, JIPREZE V. OKONKWO & ANOR (1987) 3 NWLR (PT. 67) 737. It is his further contention that the averments in paragraphs 3, 4 and 5 of the statement of defence raised a good defence and triable issues which should have necessitated the matter being transferred to the general cause list. According to counsel, triable issue simply means that the defendant has disclosed points, which ought to be inquired into more deeply vide a trial on the General Cause List.

He referred to EBONG V. IKPE (2002) 21 WRN 56.

The Respondent’s counsel submitted that the procedure for summary judgment under Order 11 of the High Court (Civil Procedure) Rules, 2006 of Anambra State is a peculiar procedure intended to apply to cases where the Defendant has not been able to put forward a bonafide defence on the merit to the claim of the plaintiff or raise material issues worthy of further investigation at a trial as in this case. He further submitted that there can be no reasonable doubt that a plaintiff is entitled to judgment where it is inexpedient to allow a defendant to defend for mere purpose of delay as in the instant case where the appellant since the 3rd day of June, 2011 collected the sum of five hundred thousand Naira but has not shown a certificate of occupancy of any land to the respondent and has refused to refund the money collected for the purpose of obtaining same. He referred to NKWO MARKET COMMUNITY BANK (NIG.) LTD V. PAUL EJIKEME UWABUCHI OBI (2010) 14 NWLR PT. 1213 PAGE 169 AT 184 – 185 R.6, NISHIZAWA LTD V. JETHWANI (1984) ALL NLR 470 AT 471 OR 12 SC 234. It is the contention of the respondent that all the

appellant wanted is to continue to delay and prolong the litigation so as to frustrate and dribble the respondent and cheat him out of the judgment he is legitimately entitled to by employing delay tactics aimed not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligations and indebtedness. The respondent further contended that the appellant having admitted the receipt of five hundred thousand naira from the respondent, he has to refund the sum more so when the transaction was tainted with fraud as the document at page 42 of the record of appeal stated clearly that the purported letter of allocation of land to the deceased with reference: Law 4843/T/8/4 dated 21st August, 2002 given to him by the appellant did not originate from the official records of the Ministry of Lands, Survey and Town Planning.

On the alleged conflict in the case of the parties, counsel submitted that there was no conflict in the case of the parties as the only thing the appellant is contending is that he acted as an agent of the deceased and that is why he wants the matter to be transferred to the general cause

list. He further submitted that a cursory look at the documents filed by the parties at the Court below and the averments of the parties shows that there is no genuine conflict of facts upon which the appellant can be indulged to defend the suit in the general cause list. On when leave to defend an action on undefended list will be granted, Counsel referred to EZEKIEL OKOLI V. MORE CAB FINANCE (NIG) LTD (2007) 14 NWLR PT 1053 PG 37 AT 69. HAIDO V. USMAN (2004) 3 NWLR PT. 859 AT 56, EBONG V IKPE (2002) 7 NWLR PT. 797 AT 504. BONA V. TEXTILE LTD & ANOR. V. ASABA TEXTILE MILL PLC (2013) MRCCJ VOL. XI PAGE 16 PARAS F-H, UNITED BANK FOR AFRICA PLC & ANOR V. ALHAJI BABANGIDA JARGABA (2007) 11 NWLR PT 1045 PAGE 247 AT 272-273. He urged the Court to dismiss this appeal with punitive cost.

In reply to the submissions of the respondent’s counsel, the appellant’s counsel submitted that the truth or falsity of the appellant’s assertion that he did not receive the sum of N500,000.00 as a participant in the business between the respondent and the deceased and that he did no more than collect the money and transmit it to the deceased can only

be discovered in a trial.

RESOLUTION
This appeal is predicated upon the provisions of ORDER 11 RULES 1 – 6 OF THE HIGH COURT (CIVIL PROCEDURE) RULES, 2006 OF ANAMBRA STATE (hereinafter called “The Rules”) which provides that:
1. Where a Plaintiff believes that there is no defence to his claim, he shall file with his originating process the statement of claim, the exhibits, the depositions of his witnesses and an application for summary judgment which application shall be supported by an affidavit stating the grounds for his belief and a written address in respect thereof.
Delivery of extra copies
2. A Plaintiff shall deliver to the Registrar as many copies of all the processes and documents referred to in Rule 1 of this Order as there are Defendants.
Service
3. Service of all the processes and documents referred to in Rule 1 of this Order shall be effected in the manner provided under Order 7.
Where Defendant intends to defend
4. Where a party served with the processes and documents referred to in Rule 1 of this Order intends to defend the suit he shall, not later than the time prescribed for defence,

file:
(a) his statement of defence.
(b) depositions of his witnesses.
(c) Exhibits to be used in his defence; and
(d) A written address in reply to the application for summary judgment.
Where defendant has good defence or has no good defence or has good defence to part of the claim
5. (1) Where it appears to a Judge that a Defendant has a good defence and ought to be permitted to defend the claim he may be granted leave to defend.
(2) Where it appears to a judge that the defendant has no good defence the Judge may thereupon enter judgment for a plaintiff.
(3) Where it appears to a Judge that the defendant has a good defence to part of the claim but no defence to other parts of the claim, the Judge may thereupon enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence.
Where there are several Defendants
6. Where there are several Defendants and it appears to a Judge that any of the Defendants has a good defence and ought to be permitted to defend the claim and other defendants have no good defence and ought not to be permitted to

defend the former may be permitted to defend and the Judge shall enter judgment against the latter.”
In the determination of an application for summary judgment, the Court considers the averments in the pleadings of both parties, the depositions in support of the pleadings, the motion and any additional evidence adduced by the parties to determine whether there is a genuine issue of material fact rather than one of law. See BONA V. TEXTILE LTD & ANOR V. ASABA TEXTILE MILL PLC (SUPRA). The Court must be satisfied that the defence raised is a real and genuine defence on the merits, and not a flimsy, fanciful, frivolous defence raised to prolong the case or play for time. See UNITED BANK FOR AFRICA PLC & ANOR V. ALHAJI BABANGIDA JARGABA (SUPRA).

In the instant case, the respondent averred in paragraphs 3 -11 of the statement of claim that:
3. “The Plaintiff states that in year 2011, the 1st defendant approached him with an offer to sell to him a plot of land situate at Plot OS/19 Central Business District, Awka purported land of the 2nd Defendant whom he claimed has given him authority to sell the said land. The 1st defendant further

deceived the plaintiff that the problem they are facing at the moment is the fund to process the certificate of occupancy over the said plot of land which is already in progress.
4. The plaintiff states that both defendants with him discussed the purchase price of the land and agreed for Eight Million Naira (N8,000,000.00) and thereafter the Defendants requested the Plaintiff to deposit the sum of Five Hundred Thousand Naira (N500,000.00) to them to facilitate the processes of obtaining the certificate of occupancy and to make payment of the Seven Million Five Hundred Thousand Naira (N7,500,000.00) upon obtaining the certificate of occupancy.
5. The Plaintiff avers that the 2nd defendant then directed the plaintiff to pay the money through the 1st defendant that he has his permission to so collect the money and continue the process of obtaining the Certificate of Occupancy.
6. The Plaintiff states that the 1st Defendant thereafter gave him his Account Number with Diamond Bank Plc whereupon he on the 3rd day of June, 2011 deposited personally into the account the sum of Five Hundred Thousand Naira (N500,000.00) into the account of the 2nd

defendant. The plaintiff states that he paid this money at Garki Abuja, Moh’d Buhari Way Branch of Diamond Bank Plc. The plaintiff hereby plead the teller with which he paid the money with teller No. 5084486 and shall rely on same during hearing.
7. The Plaintiff states that the Defendants with the intention to convince him into believing that the 2nd defendant owns the land they purported to sell to him gave him photocopies of documents titled (a) Allocation of plot OS/19 Central Business District Awka dated 21st August, 2002 with Ref No. LAW4843/T/8/4 addressed to the 2nd defendant signed by Hon. K.G. Enemuo former Commissioner for Lands, Survey and Urban Planning (b) Survey Plan titled Awka Central Business District containing 9 plots of land signed by Surv. J.N Oguejiofor, (c) Anambra State Board of Internal Revenue General Receipt with receipt No. 00792797 issued to the 2nd defendant dated 21st August, 2002. The above named 3 documents given to the Plaintiff by the defendants were photocopies as the original of them are with 2nd defendant. Notice is hereby given to the Defendants to produce the originals of the above named documents as the

plaintiff shall rely upon them during hearing and they are hereby pleaded.
8. The Plaintiff states that three (3) months after he paid the money to the defendants and the above named documents given to him, no certificate of occupancy was obtained and not being satisfied with the stories of the defendants, he briefed A.N Onuorah Esq., to write Ministry of Land, Survey and Planning inquiring about the purported allocation of plot OS/19 Central Business District, Awka to the 2nd Defendant. The said A.N Onuorah Esq., wrote the Ministry on the 19th day of October, 2011. On 25th November, 2011 the Ministry replied the letter and therein stated clearly that the purported release letter with reference LAW:4843/T/8/4 dated 21st August, 2002 did not originate from the official records of their office. The Plaintiff pleads the letter with reference No. LAW:8016/6 dated 25th November, 2011 addressed to A.N Onuorah Esq., signed by C. Umezinwa for the Commissioner and will rely on same during trial.
9. The Plaintiff states that when he received this letter, he was too surprised that the 1st defendant whom he knows too well can connive with the 2nd Defendant to

defraud him of his hard earned Five Hundred Thousand Naira. He took the photocopy of the letter to the 1st defendant and explained to him of his findings owing to the fact that the certificate of occupancy they promised is not forthcoming coupled with the emergence of the letter from the Ministry of Lands. The 1st Defendant tried to be crafty with the truth and could not give the plaintiff any convincing answer to the prevailing circumstance. The plaintiff there and then requested that his money be refunded to him since the transaction is tainted with fraud.
10. The Plaintiff states that upon stating the above obvious, the 1st defendant told him to calm down that he will liase with the 2nd Defendant whom the allocation was given to and that both of them will put heads together to know how to sought the issue out and equally promised the plaintiff that in the event of their effort failing that they will immediately refund him his money.
11. The Plaintiff states that months after the promises by the 1st defendant to liase with the 2nd defendant to refund him his money, the 1st defendant became violent and resorted to violent threat to the Plaintiff

each time he made request for the refund. The 1st Defendant who is the chairman of Awka Youths resorted to avoiding the calls of the Plaintiff and the same applies to the 2nd Defendant.”

Respondent averred in paragraphs 3-5 of the statement of defence that:
3.“Paragraphs 3 and 4 of the statement of claim are denied. The Plaintiff and the 1st defendant did not enter into any transaction for any sale of land. At no time did the 1st Defendant represent himself to the Plaintiff as having obtained the 2nd Defendant’s authority to act in respect of any land.
4. In further response, the 1st Defendant denies expressly that he discussed any sale of land as he had none to convey to the plaintiff. The 1st defendant did not at any time make any offer to do any of the things which the plaintiff has averred.
5. Paragraphs 5 and 6 of the statement of claim are admitted. However, in further amplification of the said paragraphs, the 1st defendant states as follow-
(a) That the 1st defendant simply acted the instruction which the 2nd defendant gave him. He did no more than that.
(b) There was no discussion or undertaking of any

kind about the 1st defendant obtaining any certificate of occupancy for the plaintiff.
6. Paragraphs 7, 8, 9, 10 and 11 of the statement of claim are denied. In response thereto the 1st defendant avers as follows-
(a) That he did not act as the plaintiff’s agent or representative. He also did not act for the 2nd defendant by way of mounting any persuasion on the Plaintiff. All decisions which the plaintiff took in the course of the transaction he had with the 2nd defendant were voluntarily made.
(b) The 1st defendant has no possession of any document. He is therefore, not in a position to produce any.
(c) There was never a time the Plaintiff retained the 1st Defendant’s services to procure any land documents for him. The 1st Defendant is not aware of any letters written to the Ministry of Lands on the issue as the plaintiff did not contact him before writing any such letter. The contents and purport of the said letters are therefore, not binding on the 1st defendant.
(d) The 1st Defendant had no such episode playing out between him and the plaintiff. He will therefore require strictest proof of such allegations. At no time

did the 1st defendant issue any kind of threat to the plaintiff.”

The respondent filed a reply to the statement of defence wherein he averred in paragraphs 1-5 that:
1. “Paragraphs 1, 2 and 3 of the Statement of Defence of the 1st defendant are false and same are denied. In reaction thereto, the plaintiff states that the defendants connived and the 1st defendant approached him with an offer of sale of land, they discussed and agreed for Eight Million Naira wherein the defendant jointly requested for Five Hundred Thousand Naira to enable them complete the process of obtaining certificate of occupancy which according to them was already in progress. It was on that basis that both defendants agreed that the Five Hundred Thousand Naira be paid to the 1st defendant who is the person processing the certificate of occupancy.
2. The plaintiff avers that it was on the basis of that, that he was given an account no by the 1st defendant and he accordingly deposited the money.
3. Paragraph 4 of the statement of defence is false. In reaction thereto, the plaintiff avers that the 1st defendant in year 2011 approached the plaintiff with an

offer of sale of land which according to him belonged to Chief Chigbata Okoli and that he has his permission to sell the land. It was the conviction of the 1st defendant and affirmation of the 2nd defendant that he owns the land that motivated the plaintiff into making the advance payment of Five Hundred Thousand Naira (#500,000.00) into the 1st defendant’s Diamond Bank Account.
4. That the plaintiff denies paragraphs 6, 7, 8, 9 and 10 of the Statement of Defence in reaction thereto, the plaintiff reaffirms the averments contained in the statement of claim as the true facts of the case. In further reaction, the plaintiff states that at all time material to the failed transaction, the 1st defendant was not acting as an agent or representative of the plaintiff rather he presented himself as agent and was working for the 2nd defendant and both of them presented themselves to the plaintiff as such.
5. The plaintiff restates that at all time material to the failed transaction the defendants knew what they set out to achieve which is defraud the plaintiff his money, which hidden facts the plaintiff is oblivious of.”

It was on the basis of the above averments of both parties that the Court below held that the appellant did not raise a good defence to the claim of the respondent to warrant a grant of leave to defend same. I have scrutinized the entire pleadings of both parties and the affidavit in support of the application for summary judgment. The appellant clearly admitted the fact that a sum of #500,000:00 was paid into his account. He however stated that he simply acted on the instruction of the deceased Chief Chigbata Okoli and that he simply collected the money and gave it to the deceased. He did not produce the statement of his account to show that the money paid into his account was withdrawn or transferred to the deceased. The purpose for which the money was paid into the appellant’s account and not the deceased’s account was to enable the appellant continue with the process of obtaining the certificate of occupancy of the land offered for sale to the respondent. That is the fact pleaded in paragraph 5 of the statement of claim which was admitted by the appellant. The appellant insisted that he simply acted on the instruction of the deceased. In law he is an agent of the

deceased. The general principle of law regarding liability of an agent of a disclosed principal is that an agent acting on behalf of a known and disclosed principal incurred no liability because an act done by the agent is the act of the principal. However, it is not in all situations that an agent of a disclosed principal will not be liable for the act of a principal. Whether an agent is personally liable for his action and/or the action of his principal is determined by the nature and terms of the contract and the surrounding circumstances. See ASAFA FOODS FACTORY LTD. V. ALRAINE (NIG.) LTD.(2002) LPELR-570(SC) AT 18-19 (E-B). On the facts and circumstances disclosed in this case as pleaded by the appellant himself, the appellant acted contrary to the agreement that the money paid to him would be used by him to continue the process of obtaining the certificate of occupancy of the land. The action of the appellant even if believed confirms the fact that the transaction is tainted with fraud and the appellant is a participant in that fraud. An agent who knowingly participated in a transaction tainted with fraud as in this case is personally liable for the

fraud. In FBN V. OZOKWERE (2013) LPELR- 21897 (SC) AT 17 (A-E), the Supreme Court considered the issue of when an agent will be liable to repay money which is paid to such agent for the use of his principal and held Per ONNOGHEN, J.S.C as follows:
“In Bowstead on Agency, 12th Ed. Article 124 thereof, the learned author stated as follows:- “Where money is paid to an agent for the use of his principal, and the circumstances of the case are such that the person paying the money is entitled to recover it back, the agent is personally liable to repay such money in the following cases namely:- (a) … (b)… (c) where the money is paid under a mistake of fact, or under duress, or in consequence of some fraud or wrongful act, and repayment is demanded of the agent, or notice is given to him of the intention of the payer to demand payment, before he has in good faith paid the money over to, or otherwise dealt to his detriment with the principal in belief that the payment was a good and valid payment.”
In the instant case, the following facts are clearly established by pleadings of both parties (1) the money was paid to the appellant in consequence of fraud

perpetrated on the respondent by the appellant and the deceased. (2) even if the assertion of the appellant that he paid over the entire money to the deceased is believed, the payment was not made in good faith. The appellant is therefore liable personally to repay the money to the respondent.

purposes of delay to enter judgment in respect of the amount claimed. See Jones v. Stone (1894) A.C. 122. The maxim interest rei publicae ut sit finis litiumis the mother of this procedure as in all forms of action which seek to reduce the volume of litigation.”
The appellant’s counsel strenuously argued about his perceived conflicts in the pleadings of the parties and why the Court below ought to have granted the appellant leave to defend the suit. The Court is bound to call oral evidence in a procedure for summary judgment where there is a real and genuine conflict in the case of the parties and a good defence is thereby disclosed. The Court has a duty to be vigilant and not allow a defendant to pull wool over its eyes to grant leave to defend for a sole purpose of frustrating the course of justice by twisting or creating or manufacturing irrelevant facts after admitting the salient facts of the plaintiff’s case. That exactly is what the appellant attempted to do at the Court below. Fortunately, the Court saw through the gimmick and made the right decision which accords with the law. The alleged conflict in the case is a figment of the

appellant’s imagination. Apart from the admission in the statement of defence, the appellant’s counsel confirmed the admission of the salient facts upon which the respondent’s case was built when he stated in paragraph 2.03 of his brief that :
“The 1st Defendant, speaking for himself alone admitted that there was indeed a land negotiation. He confirmed the payment of #500, 00.00 into his account. But he stated in clear terms that the money was then given to the 2nd defendant. Issues were then joined on this point.”

The Appellant having admitted the salient facts of the respondent’s case, what was left for the Court was to apply the law. On the facts and circumstances disclosed in the instant case, the finding of the Court below that the Appellant did not disclose a good defence to warrant the Court to grant leave to defend and transfer the matter to the general cause list cannot be faulted. A grant of leave to defend the respondent’s claim would have defeated the purpose of the provisions of Order 11 of the High Court (Civil Procedure) Rules, 2006 of Anambra State which is to avoid a delay in the delivery of

justice where a defendant has no defence to the claim.

For the above reasons, I find that this appeal lacks merit and it is hereby dismissed. There shall be fifty thousand naira (#50,000.00) costs in favour of the Respondent and against the Appellant.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSUFF JCA and I totally endorse the reasoning and conclusion therein.

For the more detailed reasoning in the lead judgment, I equally find no merit in this appeal and I dismiss it accordingly.
I adopt the consequential orders in the lead judgment as mine.

ABUBAKAR SADIQ UMAR, J.C.A.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother; MISITURA OMODERE BOLAJI-YUSUFF, JCA, and I entirely agree with the reasoning and conclusion contained thereat. I have nothing useful to add to a well prepared judgment which has resolved all the issues submitted for determination of this appeal.
I adopt the judgment as mine and join in dismissing this appeal as well; with a cost of

N50,000.00 in favour of the Respondents and against the Appellants.

Appearances:

I Agbogu For Appellant(s)

Uchenna Obiora, with him, E. E. Okenu and N. K. Ucheji For Respondent(s)