OGUNMOLA v. UBA PLC (2020)

OGUNMOLA v. UBA PLC

(2020)LCN/15186(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, February 26, 2020

CA/L/217/2017

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Obande Festus Ogbuinya Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

CHARLES OGUNMOLA APPELANT(S)

And

UNITED BANK FOR AFRICA PLC RESPONDENT(S)

RATIO

MEANING OF A “PERSON INTERESTED”

The keyword to watch out for when interpreting this section on admissibility of evidence is person interested (a person who has interest). This is someone who would be affected by the result of a proceedings and would by so doing have the intuition to pervert justice by giving a false statement. In U.T.C NIGERIA PLC v ALHAJI ABDUL WAHAB LAWAL (2013) LPELR – 23002 (SC), the Apex Court per ARIWOOLA, JSC held thus;
“A “person interested” is said to mean one who has pecuniary or other material interest in the result of the proceeding. A person whose interest is affected by the result of the proceedings, and therefore would have a temptation to pervert the truth to serve his personal or private ends. It does not mean an interest in the sense of intellectual observation or an interest purely due to sympathy. It means “an interest in legal sense, which imports something to be gained or lost.” See; Holton v. Holton (1946) 2 All ER 534 at 535; Nigeria Social Insurance TrustV. Klifco Nigeria Ltd (2010) 13 NWLR (Pt. 1211) 307; (2010) 8 SCM 212”. (P. 26, PARAS. A – E). PER OBASEKI – ADEJUMO, J.C.A.

DEFINITION OF A “COUNTER-CLAIM”

A counter -claim has been held by the Supreme Court in SUNMONU IGE & ORS v BABAJIDE ,AKINWUNMI FARINDE & ORS (1994) LPELR – 1452, per IGUH, JSC to be; “…substantially a sort of cross -action; not merely a defence to the Plaintiff’s action.” The Supreme Court further held in JERIC NIGERIA LIMITED v UNION BANK OF NIGERIA PLC (2000) LPELR – 1607 (SC) that; “It is trite law, that for all intents and purposes, a counter-claim is a separate, independent and distinct action and the counter-claimant, like all other plaintiffs in the action, must prove his claim against the person counter- claimed against before obtaining judgment on the counter -claim. See Ogbonna v. AG Imo State (1992) 1 NWLR (Pt. 220) 647; Obmiami Brick & Stone Nig. Ltd v A. C. B Ltd (1992) 3 NWLR (Pt. 229) 260; Dabup v Kolo (1993) 9 NWLR (Pt. 317)”
per KALGO, JSC (P. 25, PARAS. C – E). See also; NSEFIK (SINCE DEAD) & ORS v MUNA & ORS (2013) LPELR – 21862 (SC); OROJA & ORS v ADENIYI & ORS (2017) LPELR – 41985 (SC); ATIBA IYALAMU SAVINGS & LOANS LTD v SUBERU & ANOR (2018) LPELR – 44069 (SC). PER OBASEKI – ADEJUMO, J.C.A.

THE OBJECT OF RULES RELATING TO ACTIONS ON SUMMARY JUDGEMENT

ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the summary final judgment of the High Court of Lagos by A. O Williams, J delivered on 24th November, 2016. The facts of this case as gleaned from the record before the Court are that; the Respondent who was the Claimant at the trial Court claimed against the Appellant (Defendant at the Lower Court) the sum of N 57, 347, 390. 71 (Fifty seven Million, Three Hundred and Forty seven Thousand, Three Hundred and Ninety Naira, Seventy one Kobo) being the Appellant’s outstanding indebtedness as at 27th February, 2015 of the mortgage loan granted to the Appellant by the Respondent in August 2007 for the purchase of a property, a 5 bedroom detached house with 2 bedroom boys quarters at Block 16, Plot 7, Oniru Estate, Lekki, Victoria Island, Lagos.

The Respondent filed a Motion on Notice dated March 16, 2015 for Summary judgment against the Appellant. The Appellant filed its Statement of Defence and Counter Affidavit dated February 5th, 2016 and relied on a Forensic Report by a firm of Chartered Accountants (Anthony Ononye and Co.) of the Appellant’s account to counterclaim the sum of N16, 544,518.53 as excess deductions of the principal amount, excess interest charges, illegal contra entries and charges on the Appellant’s account by the Respondent.

The Respondent based on the Appellant’s Forensic audit Accounting Report, admitted in its reply to the Appellant’s defence that it had indeed debited the Appellant’s account with excess charges in the sum of N1, 682, 284, 94 and not N16, 544, 518, 53.

The Learned Trial Judge however entered Summary Judgment for the sum of N55, 665, 105, 77 in favour of the Respondent against the Appellant, which was different from the Respondent’s claim for the sum of N57,347, 390.71, miffed by the Court’s decision the Appellant has brought this appeal.

The parties exchanged briefs; the Appellant’s brief was filed 21st February, 2018 and deemed on the 27th of January, 2019 which was settled by Alewo F. Etuk (Mrs), James Adetutu Esq of Sceptre Law, wherein she distilled four issues for determination;
1. Whether the learned trial judge was right when he held that the Appellant did not raise any triable issue in his Defence when the parties by their pleadings had already joined and raised triable issues in respect of the Respondent’s excess and illegal charges to the Appellant’s bank account with the Respondent.
2. Whether the Appellant’s counter claim for N16,544,518.53K ought to have been set down for trial.
3. Whether the learned trial judge was right when he discountenanced the Forensic Audit Report on the Appellant’s account with the Respondent as part of the evidence for consideration in coming to a final decision on the matter.
4. Whether the learned trial judge was right when he held that the Appellant’s defence was an admission of the Respondent’s claim.

The Respondent’s brief was filed on 3rd of March, 2018 and deemed 27th January, 2019. The brief was settled by Chioma I. M. Okwuanyi; Matthew K. Okwuanyi; Chinedu Nnachi; Chukwuyem Chioma of Chioma Okwuanyi & Co, where in the following issues were distilled;
1. In view of Section 83 (3) of the Evidence Act, 2011, was the learned trial judge right to have discountenanced the Forensic Audit Report made by a person employed or retained by the Appellant several months after the commencement of the suit?
2. If the answer to issue 1 above is in the affirmative, whether the learned trial judge was right to have refused setting down for trial the Appellant’s counter – claim of N16,544,518.53 which was based on an admissible Forensic Audit Report and borne out of afterthought.
3. Whether the learned trial judge rightly found the Appellant’s defence to be an admission of the Respondent’s claim, when the Appellant did not actually deny the debt, but rather admitted and acknowledge same in his Statement of Defence and Counter Affidavit and in exhibits A6 and A8.
4. If the answers to issues 1 – 3 above are in the affirmative, whether the learned trial judge rightly entered Summary judgement in the sum of N 55, 665, 105. 77 in favour of the Respondent and against the Appellant based on the findings of the court that there was no triable issue in the Appellant’s Defence, after he had previously admitted and acknowledged the indebtedness and showed no proof of repayment.

APPELLANT’S ARGUMENTS
The Appellant in issue 1 cited MBABA, JCA in the case of ILORIN EAST LOCAL GOVERNMENT v ALASINRIN & ANOR (2012) LPELR – 8400 (CA) in defining what constitutes triable issues in a case.

It is the Appellant’s submission that from its counter affidavit, statement of defence, he did not only deny all the material allegations of the Respondent but also set before the trial Court facts contradictory to the case of the Respondent. Appellant further submits the Further Affidavit of the Respondent as further proof of the contentious and triable issues between the claims of the Claimant (Respondent) and the averments and counterclaim of the Defendant (Appellant) to warrant the trial Court to set the matter down for trial to effectively and conclusively determine the suit on the merits. Counsel relied on the cases of DANSTARCHER TURNKEY CONTRACTORS LTD v UNION BANK OF NIGERIA PLC (2015) LPELR – 24631 (CA); BEAUMONT RESOURCES LTD & ANOR v DWC DRILLING LTD (2017) LPELR – 42814 (CA).

On issue 2, the Appellant submitted that in his pleading, he counterclaimed the sum of N16,544,518.53 from the Respondent as being the sum total of excess principal loan charges, illegal contra entries and illegal charges on the Appellant’s account by the Respondent. The Respondent also counterclaimed interest on N16,544,518. 53k at the rate of 21% per annum until judgment is delivered and thereafter, 15% interest on the judgment sum until the judgment sum is liquated, he cited in aid USMAN v GARKE (2003) LPELR – 3431 (SC).

Counsel opines that its counter claim ought to have been tried and properly determined.
The Appellant on issue 3 subtly submits that the trial Court was misled by his application of Section 83 (3) of the Evidence Act, 2011, and submitted further that the Section didn’t refer to all statement made during the pendency or anticipation of a suit but rather to statements made but person(s) interested in the suit. ENYIBROS FOODS PROCESSING COMPANY LIMITED & ANOR v NIGERIAN DEPOSIT INSURANCE CORPORATION & ANOR (2007) 3 SCNJ 250; COL. HASSAN YAKUBU (RTD) v THE GOVERNOR OF KOGI STATE (1995) 9 SCNJ 122 was used in buttressing his submission.

On issue 4, the Appellant submits that the existence of a loan was never disputed by him but rather the indebtedness claimed by the Respondent (Claimant), and in his pleadings, the Appellant contradicted the evidence of the Claimant and even placed before the Court an uncontroverted Forensic Audit report by an expert auditor challenging the indebtedness of the Appellant. BUHARI & ANOR v OBASANJO & ORS (2005) 9 SCM 1 was relied on.

He further submitted that the failure of the Appellant to deny being indebted to the Respondent in his letter dated 26th November, 2011 as an admission of indebtedness is not conclusive proof of the Appellant’s indebtedness, Section 27 of the Evidence Act, 2011; OSAYAMEH v NIGERIA DEPOSIT INSURANCE CORPORATION & ANOR (2009) LPELR – 8846 (CA); BON LTD v SALEH (1999) LPELR – 6544 (CA) was relied on.

In conclusion, the Appellant urges that the appeal be allowed, the summary judgment of the lower Court be set aside and a retrial of the matter on the merits be ordered, OZIBE v AIGBE (1977) 7 S.C 1.

RESPONDENT’S ARGUMENTS
The Respondent submitting on issue 1 and relying on Section 83 (3) of the Evidence Act that the Forensic Audit Report made by a person engaged by the Appellant to audit the Appellant’s Loan Account several months after the commencement of the suit is undoubtedly inadmissible in evidence, as admitting same would go against the laid down principles of law.

It is further submitted that by Section 83 (3) of the Evidence Act, the Forensic Audit Report is inadmissible because it was made by a person interested at the time when the suit was already pending in court, the Chartered Accountant who prepared the Forensic Audit Report; Anthony Ononye has a personal interest in the result because he was engaged by the Appellant, an interested party to produce the Forensic Report, OLOMO v APE (2015) 14 NWLR (PT. 1478) 46 at 60 PARA D – E was cited in defining who a “person interested” covers.

The case of B. B. APUGO & SONS LTD v OHMB (2016) LPELR – 40598 (SC) PAGE 67, PARA B – F was cited in response to the paragraphs 7.5 and 7.6 of the Appellant’s brief of argument and the Respondent opines that there is a high likelihood of bias by the Chartered Account in favour of the Appellant who engaged him, especially as the Appellant intended to call him as a witness.

Respondent further opines that the trial judge was right to have discountenanced the Forensic Audit Report in view of Section 83 (3) of the Evidence Act, 2011.

On issue 2, the Respondent submits the trial judge rightly discountenanced the Appellant’s counter claim which was based on the inadmissible Forensic Audit Report, and rightly deducted the sum of N 1, 682, 284. 94 from the total sum claimed by the Respondent and awarded the balance of N 55, 665, 105. 77.

AL – HASSAN v ISHAKU (2016) 10 NWLR (PT. 1520) 230 SC; TANKO v MAI – WAKA (2010) 1 NWLR (PT. 1176) P. 468 @ 488 PARAS. D – F; SKYE BANK PLC v AKINPELU (2010) 9 NWLR (PT. 1198) P. 179 @ 195 PARAS. D – E were cited in buttressing the Respondent’s submission that the Appellant failed to show detailed particulars or show in a chronological order how the computation of the alleged excess charges was done, therefore it is not expected that the trial judge should embark on a voyage to ascertain those particulars.

The Respondent in response to the Appellant’s brief of argument submits that there is nothing in its Reply to the Appellant’s Statement of Defence or Defence to Appellant’s Counter affidavit that shows admission of incorrect computations and indebtedness to the Appellant by the Respondent.

Respondent’s submits on issue 3 that the Appellant’s defence was an admission of the Respondent’s claim, counsel cited UBA PLC v JARGABA (2007) 11 NWLR 9PT. 1045) P. 247 @ PP. 271 PARA C, 276 PARAS. F – G, 278 PARAS. G – H.

The Appellant also did not at any point contradict the evidence of the Respondent, neither did he produce or present any document to show how and when he repaid his loan obligation and the accrued interest to the Respondent, JOLABON INV (NIG) LTD v OYUS INT’L CO. (NIG) LTD (2015) 18 NWLR (PT. 1490) @ PP. 42 – 43 PARAS. G – A.

On issue 4, the Respondent opines that the trial judge rightly entered summary judgment in the sum of N 55, 665, 105.77 in favour of the Respondent and against the Appellant, the Appellant did not raise any triable issue in his proposed defence to the claim of the Respondent. Counsel relied on the case of UBA PLC v JARGABA (2007) 11 NWLR (PT. 1045) P. 247 @ PP. 271 PARA C, 276 PARAS. F– G, 278 PARAS. G–H and MACAULAY v NAL MERCHANT BANK LTD (1990) 4 NWLR (PT. 144) 283 (SC) was relied on for the principles for summary judgment procedure under Order 11 which a defendant must fulfill before he can be allowed to defend NISHIZAWA LTD v JETHWANI (1984) 12 SC 234; UNIBEN v K. T. ORG LTD (2007) 14 NWLR (PT. 1055) P. 441 @ P. 476 PARAS. E – F; JOLABON INV. (NIG) v OYUS INT’L CO. (NIG) LTD (2015) 18 NWLR (PT. 1490) P. 30 @ PP. 43 PARA. E; 44 PARAS. A – C, were cited by the Respondent in submitting that the Appellant had no real defence to the Respondent’s claim.

Counsel further submits that the Appellant’s Statement of Defence merely shows that the Appellant alleged to have paid all obligations on the Mortgage, he didn’t show how he made the repayments nor pleaded or exhibited any document as a proof of the alleged repayment, Counsel relied on Section 131 (1) of the Evidence Act; CARLING INT’L NIG. LTD v KEYSTONE BANK LTD (2017) 9 NWLR PT. 571; ILORIN EAST LOCAL GOVT. v ALASINRIN & ANOR (2012) LPELR–8400 (CA); COTIA v SANUSI BROTHERS (2000) 6 SCNJ 453 at 455.

In conclusion, the Respondent urges the Court to uphold the judgment of the Lower Court and dismiss the appeal in its entirety.

RESOLUTION
As a matter of preference, precision and because it encompasses both issues raised by the parties, the Respondent’s issues would be used for the determination of this appeal.

In resolving Issue 1, which touches on issue 1 of the Appellant’s issue 1, it is imperative to take more than a cursory glance at Section 83 (3) of the Evidence Act, which provides thus;
“Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish”.
The keyword to watch out for when interpreting this section on admissibility of evidence is person interested (a person who has interest). This is someone who would be affected by the result of a proceedings and would by so doing have the intuition to pervert justice by giving a false statement. In U.T.C NIGERIA PLC v ALHAJI ABDUL WAHAB LAWAL (2013) LPELR – 23002 (SC), the Apex Court per ARIWOOLA, JSC held thus;
“A “person interested” is said to mean one who has pecuniary or other material interest in the result of the proceeding. A person whose interest is affected by the result of the proceedings, and therefore would have a temptation to pervert the truth to serve his personal or private ends. It does not mean an interest in the sense of intellectual observation or an interest purely due to sympathy. It means “an interest in legal sense, which imports something to be gained or lost.” See; Holton v. Holton (1946) 2 All ER 534 at 535; Nigeria Social Insurance TrustV. Klifco Nigeria Ltd (2010) 13 NWLR (Pt. 1211) 307; (2010) 8 SCM 212”. (P. 26, PARAS. A – E).
In this appeal, one Mr Anthony Ononye, who is a chartered Accountant in the firm of Anthony Ononye & Co (as defined in Section 14 (1) and Section 19 of the Institute of Chartered Accountants of Nigeria Act, 1965), was engaged as a professional at the behest of the Appellant without any input of the Respondent nor the Court, who made the forensic report on the 12th October, 2015 while the suit commenced on 16th March, 2015 and the initiating processes had been served on the Appellant on 16th April, 2015.
This puts him squarely within Section 83(3) of the Evidence Act within the purview of a person with interest and for the person with interest.
In light of the above, a person whose interest is affected by the result of the proceedings, and would have a temptation to pervert the truth to serve his personal or private end; See U.T.C NIGERIA PLC v ALHAJI ABUDUL WAHAB LAWAL (2013) LPELR -23002 (SC)
In paragraphs 9 & 12 of the statement of claim, the Appellant asked for time and further understanding, he never disputed the figures until the recovery agent mounted pressure on him.
In paragraph 20 of the reply, the Respondent in reaction to the forensic report worked on the calculations of the report and found that it was computed using a default interest and therefore rejected same as it did not reflect the true position of the loan portfolio except that N 1.682, 284. 94 was to be refunded by the Respondent bank.
Most importantly, it was not marked as an exhibit; it was attached to the Appellant’s counter affidavit. See OLOMO v APE (SUPRA); APUGO & SONS LTD v OHMB (SUPRA).
The trial Court at page 501 last paragraph of the judgment evaluated the forensic audit report and found it to be an afterthought and made during the pendency of this action and in line with Section 83 (3) of the Evidence Act cannot be considered as an arguable defence, this I find impeachable and in line with the judicial interpretation of Section 83(3) of the Evidence Act. Therefore, to act on the Forensic Audit Report in the light of Section 83 (3) of the Evidence Act will not hold water, and any reliance having operated from a sole angle without the leave of Court.
The proper thing to have done was to apply to the Court for the account to be audited by a joint professional or appointee as appointed by parties. Apart from this, it amounted to a strange report which cannot affect the outcome of the matter.
I resolve issue one against the Appellant.

Issue 2 which is the same as Appellant’s issue no 2, seamlessly flows from issue 1, the Appellant’s counter -claim was founded on the Forensic Audit Report relied upon by the Appellant.

A counter -claim has been held by the Supreme Court in SUNMONU IGE & ORS v BABAJIDE AKINWUNMI FARINDE & ORS (1994) LPELR – 1452, per IGUH, JSC to be;
“…substantially a sort of cross -action; not merely a defence to the Plaintiff’s action.”
The Supreme Court further held in JERIC NIGERIA LIMITED v UNION BANK OF NIGERIA PLC (2000) LPELR – 1607 (SC) that;
“It is trite law, that for all intents and purposes, a counter-claim is a separate, independent and distinct action and the counter-claimant, like all other plaintiffs in the action, must prove his claim against the person counter- claimed against before obtaining judgment on the counter -claim. See Ogbonna v. AG Imo State (1992) 1 NWLR (Pt. 220) 647; Obmiami Brick & Stone Nig. Ltd v A. C. B Ltd (1992) 3 NWLR (Pt. 229) 260; Dabup v Kolo (1993) 9 NWLR (Pt. 317)”
per KALGO, JSC (P. 25, PARAS. C – E).
See also; NSEFIK (SINCE DEAD) & ORS v MUNA & ORS (2013) LPELR – 21862 (SC); OROJA & ORS v ADENIYI & ORS (2017) LPELR – 41985 (SC); ATIBA IYALAMU SAVINGS & LOANS LTD v SUBERU & ANOR (2018) LPELR – 44069 (SC).
The Appellant’s counter-claim was a separate suit and having been held to be caught by Section 83 (3) of the Evidence Act was dead on arrival and would be a waste of judicial time evaluating same.

However the trial Court considered the admission of the sum of N 1,682,284.94 K and ordered a refund which was deducted from the judgment sum.

All other claims were rightly in my view considered as afterthought, in line with correspondence between parties, in which the Appellant never for once disputed the amount owed, he in fact sought for and obtained concessions such as, restructuring which he signed for; see Exhibit A6 and A8. He further sought for understanding for time to secure a means of livelihood with which to sort the loan.
I therefore resolve this issue in favour of the Respondent.

Issue 3, touches on issue 4 of the Appellant’s brief.

It is important to understand the object of rules relating to actions on summary judgment which is to ensure quick dispatch of certain types of cases such as those involving debts or liquidated money claims. See; HOPE CHINWE UZAKAH v MRS NGOZI OKEKE (2017) LPELR – 43445 (CA) PG 15-16; ELFA LIMITED v CITI BANK NIGERIA & ANOR (2013) LPELR – 20721 (CA); THOR LTD v FCMB LTD (2005) 14 NWLR (PT 946) 696 710-711 PAR A – E ; LEWIS v UBA (2006) 1 NWLR (PT 962) 546 @567 PAR C-D; BEFAREEN PHARM.LTD v AIB LTD (2005)17 NWLR (PT 954).
Summary Judgment is purposefully meant to alleviate undue delay and loss of time and resources; this is however tied to the lack of defence to the plaintiff’s claim. Order 11 Rules 1 of the Lagos State Civil Procedure Rules, 2004 (which is the power to allow expeditious disposal of cases or dispute without need to resort to a plenary trial on merit. Order 11 of Lagos State High Court (Civil Procedure) Rules, 2004.
“Where a claimant believes that there is no defence to his claim, he may file with is originating process, the statement of claim, a list and copies of documents to be relied upon, a list and the depositions of his witnesses and an application for summary judgment supported by stating the grounds for his belief, and written brief in respect of same.”
In SULEIMAN JAIYEOLA MOSHOOD v UCHE AKUBI (2014) LPELR – 24005 (CA) per ABOKI, JCA, this honourable Court held thus;
“It is trite law that under the summary judgment procedure where it is obvious that a defendant does not have a defence on the merit, a Court of law will not allow such a defendant to dribble the plaintiff whose case is unassailable. The essence of the procedure is to alleviate undue delay and loss of time and resources. See; Lewis Vs U.B.A Plc (2006) 1 NWLR (Pt. 962) page 546 at 565. Thor Ltd Vs FCMB Ltd (2005) 14 NWLR (Pt. 946) page 696 at 710-711.”
Also, in the case of OBASANJO FARMS NIGERIA LIMITED v TIJJANI ADO MUHAMMAD (2016) LPELR – 40199 (CA), it was held that;
“The whole purpose of a summary judgment procedure is to ensure justice to 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. In other words, the summary judgment rules are specifically made to help the Court achieve their primary objectives, i.e to do justice to the parties by hearing their cases on merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied – United Bank for Africa Vs Jargaba (2007) 11, NWLR (Pt. 1045) 247, University of Benin Vs. Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt. 1055) 441.”
per ABIRU, JCA (PP. 34- 35, PARAS. D -B).

The Respondent (Claimant) from the record before the Court filed the necessary documents and the Motion on Notice for summary judgment on the 16th of March, 2015.
The Appellant (Defendant) made his intention to defend orally on the day of hearing of the motion for summary judgment, almost a year after the filing of the summary judgment and service on him, brought in accordance to the provisions of Order 11 Rule 4 of the Lagos Civil Procedure Rules, 2004.
The filing of a defence does not deter the judge from granting a prayer for summary judgment, in NISHIZAWA LTD v STRICHAND JETHWANI (1984) LPELR – 237 (SC), the Supreme Court per OBASEKI, JSC held thus;
“…If a statement of defence filed by the Defendant in the exercise of his right under the Rules before the application for summary judgment in the circumstances of the case did not stop the judge from granting the prayer for summary judgment, a statement of defence filed after the filing of the application will likewise have no effect on the legitimate course of the application for summary judgment…” (EMPHASIS MINE)
The keyword here is “legitimate course” of the Claimant, the defendant’s statement of defence should show that either on grounds of laws or some disputed facts which ought to be resolved, and he is entitled to defend the action, see MACAULAY v NAL MERCHANT BANK LIMITED (SUPRA).

In this case the Lower Court considered the statement of defence filed to see if it constituted a defence to the action, and whether triable.

Therefore, the fundamental question is; “Whether there were issues in disputes which ought to be have been tried?”
I have perused the Appellant (Defendant) and Respondent (Claimant) ‘s Statements and attached affidavits and there are salient facts presented at the Lower Court, particularly paragraphs 7 – 12 of the statement of claim, which I shall reproduce hereunder;
“7. The claimant avers that the loan was offered to the Defendant at an interest rate of 14. 5% per annum and the interest period was monthly.
8. The claimant avers that when the defendant left the employment of the claimant he failed and neglected the servicing of the loan and the loan deteriorated as a result of the neglect. As at 15th day of March, 2011 the debt liability of the defendant was N 44, 312, 205. 22.
9. The Claimant avers that upon the plea and request of the defendant on the 15th March, 2011 it restructured the facility which stood at N 44, 312, 208. 22 for the tenor of 180 months on monthly interest repayment of principal and interest and this was warmly accepted by the defendant. The offer for restructure of the loan dated 15th March, 2011 is hereby pleaded. The defendant is put on notice to produce the original.
10. The Claimant avers that despite the restructuring, several meetings and demand notices to the defendant, he still failed, refused and neglected the continuous servicing of the loan.
11. The Claimant on the 5th November, 2014 wrote a final demand notice to the defendant asking that he liquidate his outstanding financial liability on his mortgage which stood at N 54,864,408. 70. The defendant is put on notice to produce the original.
12. The Claimant avers that in response to the said letter of 5th November, 2014 the defendant on the 26th November, 2014 wrote to her and requested for further understanding. The Defendant letter dated 26th November, 2014 is hereby pleaded.”
and in paragraphs 10, 11, 12, 14,15 16, 17, 18, 19 & 20 of the Statement of defence and exhibits Al, A2, A3 – A8;
“10. The Defendant further avers that by the 15th of March, 2011, the Claimant had debited and loaded the account with all kinds of excess charges, debit interest, penalty fees, accrued interest, most of which are arbitrary and not at the agreed 7.5% per annum between parties, which included the mortgage perfection fee, penalties and accumulated interests, most of which are arbitrary and no at the agreed 7.5% per annum between parties, which included the mortgage perfection fee, penalties and accumulated interests. The Claimant arrived at an outstanding indebtedness for the Defendant for the sum of N44,312, 205.00 (Forty-four Million, Three Hundred and Twelve Thousand, Two Hundred and Five Naira) as at March 15, 2011.
11. Upon the Defendant’s subsequent perusal of his statement of account and to the Defendant’s surprise, the Defendant noticed that his account was on the 31st of March, 2011 debited with the sum of N1, 016, 145. 71 DR as monthly interest charged on the restructured facility instead of the sum of N182, 104. 96 DR which should have been the correct monthly interest charged on the sum of N 44,312,208. 22 at new rate of 5% per annum. The Defendant is till this day bewildered as to where the additional N 834, 040. 74K emanated from.
12. The defendant further states that even with a debit of 1% management fee flat (which is a one time fee and not monthly) at N 443, 122.98DR on the new principal sum, the total debit to his account on 31st of March, 2011, should have been N 625,227.04 DR (i.e N 443,122.08 plus N 182,104.96) and not N1,016,145.71 DR as the claimant debited to the defendant’s account as interest collected on March 31,2011. The defendant pleads his statement of account and hereby gives notice to the claimant to produce the defendant’s statement of account from inception of the mortgage loan till November 23, 2015. The defendant also gives the claimant notice to produce his statement of account for the consumer loan before the purported merger and restructure by the claimant.
13. The defendant avers that this and several other instances of irregularities and excess charges on and to his mortgage loan account culminated in his contracting a firm of auditors to assess the charges and interest payments on his account after his verbal complaints and pleas to the claimant fell on deaf ear.
14. The defendant vehemently denies paragraph 10 of the claimant’s statement of claim and in response avers that he had one meeting only with the claimant for the purpose of giving the claimant an update on the state of his unemployment and his several attempt to liquidate his loan. The defendant further contends that he received one demand notice only from the claimant, which is the demand notice dated 5th November, 2014.
15. Meanwhile, the defendant continued to pay down the mortgage and consumer loan as consistently as he could under the circumstances despite an extremely trying and protracted period of unemployment between February, 2010 when the claimant forced him to resign his employment and March 2012. The defendant’s unrelenting efforts to liquidate his mortgage loan has led to the current situation where the Defendant has sold off all his assets and shares, all of which the claimant is well aware of
16. The defendant states that in April, 2012, he was again employed by the claimant’s subsidiary — AfriPay Ltd and thereafter continued to make regular and consistent repayments until the defendant was again compelled to resign by the claimant’s subsidiary in June, 2013.
17. The defendant avers that the claims that he neglected and defaulted in the repayment of the mortgage are false because he was consistent with the repayments all through the periods of his employment, i.e for at least 4 years. The defendant also sold off assets and shares to make regular payment during the period of unemployment and pleads the defendant’s statement of account and forensic audit reports on the defendant’s account by Auditors Messrs Anthony Ononye and Co. (Chartered Accountants).
18. The defendant states that he made monthly repayments of all outstanding principal interest and penalties obligations on the mortgage for 2007, 2008, 2009, 2010, 2012 to June 2013 and never even missed one repayment.
19. The defendant avers that as at June 2013 when he was gain faced with financial adversities as a result of his unemployment and was relenting in his scheduled payments, he had successfully defrayed and offset all outstanding principal, interest and penalties obligations on the mortgage account, and was therefore only indebted to the claimant as to the subsequent consumer loan of N10, 00,000.
20. The Defendant admits paragraph 11 of the Claimant’s Statement of Claim but only to the extent of the receipt of the Claimant’s demand notice for the sum of N 54, 864, 408. 70k (Fifty-four Million, Eight Hundred and Sixty-four Thousand, Four Hundred and Eight Naira, Seventy Kobo). The Defendant however contends and avers that in January 2014, the mortgage rate was unexpectedly increased to from 5% to 24%, in addition to another round of document perfection fees amounting to approximately N 10, 500, 000 (Ten Million, Five Hundred Thousand Naira).

The above excerpt shows that on a closer scrutiny of the documents attached it’s clear that on the date of 2011, he admitted the loan and Exhibit A6 in support of affidavit which is in response to a demand dated 5th November, 2014 he did not deny the debt or make any allegation of excessive charges. He had made no payments and was out of work; see paragraph 18 of defence. He made clear admissions that he indeed took a loan and utilize same, that he failed to pay from July 2013 to December 2013 and till date, he failed to remember that interest mounted on unpaid loans and nothing came in to reduce the said capital. He failed to supply or substantiate the loop holes where he claimed to have paid for a reduced amount.

The court at page 500 of record of proceedings found that the Appellant is a seasoned banker who admitted failure to liquidate the loan, and also failed consistently to protest any outstanding to his name either in writing or orally, these were pointers to a sham defence, and could not stand the test of a triable issue in the counter claim.
In FEDERAL UNIVERSITY OF TECHNOLOGY, OWERRI v ASSET MANAGEMENT COPORATION (2019) LPELR – 47327 (CA) this Court held relying on KHALID v AL-NASIM TRAVEL & TOURS LTD & ANOR (2014) LPELR -22331 (CA);
“The whole purpose of a summary judgement procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grace 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.”
In view of the clear admission, the Lower Court rightly at page 500 of her judgement par 1 – the end, when she held that there were clear admissions sufficient to invoke the mandate given by the purpose of summary judgement and entered judgement for the Respondent . It’s trite that he who asserts must prove is applicable in this instance. In CALISTUS OBITUNDE v. ONYESOM COMMUNITY BANK LTD (2014) LPELR – 22693 (SC) relying on NISHIZAWA LTD v JETHWANI (1984) 12 SC 234 AT 260 the Apex Court set out what a defendant’s affidavit in a summary judgement procedure wherein he is seeking to be let in to defend the action must show:
“a. It should “condescend upon particulars and as far as possible, deal specifically with the plaintiffs claim and affidavit and state clearly and concisely what the defence is and what facts are relied on as supporting it;
b. State whether the defence goes to the whole or part of the claim, and in the latter case, specify the part;
c where the defence is that the defendant is not indebted to the plaintiff, state the grounds on which the defendant relies as showing that he is not indebted. A mere general denial that the defendant is not indebted will not suffice;
d, where the affidavit states that the defendant is not indebted to the plaintiff in the amount claimed or any part thereof, state why the defendant is not so indebted and to state the real nature of the defence relied on; e. where the defence is fraud, state the particulars of the fraud. A mere general allegation of fraud is useless;
f. if a legal objection is raised, state clearly the facts and point of law arising there from;
g. In all cases, give sufficient facts and particulars to show that there is a bonafide defence;
h. Also matters of hearsay are admissible, provided that the source and grounds of information and believe (sic) are disclosed. See: MACAULAY v NAL MERCHANT BANK LTD (SUPRA) AT 306-307 D – C; ADEGOKE MOTORS LTD v ADESANYA (1989) 3 NWLR (PT 109) 250@ 271-272; UTC v PAMOTEI (2002) FWLR (PT 129) 1557; NKWO COMMUNITY BANK LTD v OBI (2010)14 NWLR (1213) 169.”
per KEKERE-EKUN, JSC (PP 50-51 PAR C-D).
Following the above guide lines, I agree with the Lower Court that there is nothing showing that he is not indebted and there are conflicts between the attached Exhibit A6 & A8 which he wrote acknowledging the balance and pleaded for grace. Also on the merged loans wherein he asked for a restructuring of his account in Exhibit B attached to further affidavit of Respondent to which Exhibit A4 on restructured loans on which he signed the memorandum of acceptance on the merger.
Appellant admitted in paragraph 19 on the power of a bank to charge interest, this was against his interest and so holds ground. Therefore, the Appellant had no defence to the action and raised feeble defence, and in my humble opinion the judgement is unassailable.
The counter-claim suffers the same faith having been based on the forensic audit which was not admissible in law and was discountenanced, and the said defence lacked triable issues, nothing useful was left to try except as noted by the trial Court the Defendant/Respondent could file a separate action for interest and cost while dismissing the claim for special damages.
Issue 3 & 4 are resolved in favour of Respondent.

On the whole the issues 1-4 are against the Appellant, the appeal fails and is hereby dismissed. The Judgement of A. 0 Williams, J delivered on 24th November, 2016 is hereby affirmed.
Cost of N100, 000 is awarded to the Respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege read, in advance, the leading judgment delivered by my learned brother: ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA I am in full agreement with the reasoning and conclusion in it. I, too, penalise the appeal with a deserved dismissal. I abide by the consequential Orders decreed in it.

Appearances:

MRS. A. O. ETUKU
For Appellant(s)

CHIOMA OKUWUANYI with him, CHUKUYERA CHIOMA For Respondent(s)