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SOKOTO v. GUSAU (2020)

SOKOTO v. GUSAU

(2020)LCN/15559(CA)

In The Court of Appeal

(SOKOTO JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/S/136/2018

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

ALIYU ABUBAKAR SOKOTO APPELANT(S)

And

MANSUR MARAFA GUSAU RESPONDENT(S)

 RATIO:

PRINCIPLE / PROCEDURE OF SUMMARY JUDGMENT

The Summary Judgment Procedure, which has since replaced the old Undefended List Procedure in the High Court Civil Procedure Rules of most States of the Nigeria, is designed to facilitate the quick, speedy disposition of cases especially where the claim is for the recovery of debt or a liquidated sum as in the instant case. The procedure is profoundly useful where the facts relied upon are straight forward, simple and largely uncontested. In a good number of cases judgment may be entered for the claimant, where the defendant has been unable to put forward a good defense on the merit thus, side-stepping or obviating the need for a laborious and lengthy trial of the facts. See the cases of MACAULAY vs. NAL MERCHANT BANK LTD (1990) 4 NWLR (PT.144) 283; NISHIZAWA LTD vs. JETHWANI (1984) 12 S.C. 234; OKAMBAH vs. GANIYA SULE (1990) 7 NWLR (PT.160) 60. FREDERICK OZIAKPONO OHO, J.C.A. 

DUTIES COURT AND PARTIES IN A SUMMARY JUDGMENT PROCEDURE

It is well known fact that the proper response to an Order 11 Rule 1 application is for the Defendant/Respondent to file and serve its Statement of Defense, witness list, witness deposition, Exhibits list and copies of listed exhibits, or Respondent’s address and counter – affidavit (if any). It is of course, well settled in a number of decided cases, that the mere filing of processes under Order 11 Rule 4 will not automatically open the doorway to a plenary trial for the Defendant. The Court must be truly persuaded that the Defendant has a good defense on the merit as opposed to a sham defense. It is, of course, the responsibility of the Court not to allow itself to be hood-winked by cleverly drafted affidavits or pleadings. The Court must, so to speak, separate the wheat from the chaff and zero-in on the defense (if any).
This does not mean that the Court at this stage of the proceedings should expect an iron-cast defense from the Defendant. That is to say, that at this stage, the Court, in considering the Defendant’s defense, must do so with a good measure of liberality, while the Defendant’s defense must, as a minimum, disclose the following attributes:
1. Deal specially with the Claimant’s claim and state clearly and concisely what his defense is and what facts are relied upon in support of same.
2. State whether the defense alleged goes to the whole or part of the claim and if the latter specify the part.
3. Where the Defendant claims not to be so indebted to the Claimant, state the grounds on which the Defendant relies as showing that he is not so indebted. A mere general denial of indebtedness being insufficient.
4. Where the Defendant claims not to be indebted to the Claimant in the amount claimed or any part thereof, state why the Defendant is not so indebted and he must state the real nature of the defense relied on.
5. Where the defense relied upon is fraud, state the particulars of fraud; a mere general allegation of fraud being without consequence.
6. In all cases, give sufficient facts and particulars to show that there is a bona-fide defense. See UTC NIG LTD vs. CHIEF PAMOTEI (1989) 2 NWLR (PT.103) 244; OKAMBAH vs. GANIYA SULE (Supra); MACGREGOR ASSOCIATES LTD vs. NMB LTD (1996) SCNJ 72;  FREDERICK OZIAKPONO OHO, J.C.A. 

DUTIES OF PARTIES IN PERSUADING THE COURT TO SEND A MATTER TO THE GENERAL CAUSE LIST

To succeed in persuading the Court to send this matter to the general Cause list;
1. It is elementary, that in his processes, the Appellant as Defendant is expected to disclose the existence of a bona-fide defense on the merit to the claims.
2. Disclose the existence of material facts worthy of further elucidation at the trial (if any). Now, a material tri-able issue or fact may be described as an uncontroverted material allegation, which averment requires further investigation by the trial Court, to unravel or unearth its veracity or otherwise. Such material allegation must disclose a defense that cannot be dismissed with the wave of the hand and not a mere sham or after-thought.
The Respondent cannot afford to be evasive. He must be seen to condescend on the particulars of his defense and as far as possible deal specifically with the claims. FREDERICK OZIAKPONO OHO, J.C.A. 

 

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Sokoto State, (hereinafter referred to as: “the Court below”), delivered on the 13th February, 2018, in suit No: SS/70/2017 wherein summary judgment was entered against the Appellant in favour of the Respondent. By a Summary Judgment Procedure made pursuant to Order 11, Rule 1 of the Sokoto State High Court (Civil Procedure) Rules, 2015 filed on the 11-11-2017, the Claimant, now Respondent claimed against the Appellant who was Defendant, the followings:
1. The recovery of the sum of N5, 025,000.00 (Five Million, Twenty-Five Thousand Naira) only being the outstanding balance of the price of litres of petroleum products supplied to the Defendant.
2. 10% interest on the said sum from 3rd October, 2017 until judgment and thereafter at the same 10% interest thereon until full and final liquidation of the debt.
3. Plus cost of this action.

In response to the Respondent’s application for summary judgment, the Appellant filed a counter affidavit to which he attached a counter claim contending that the Respondent has nothing to recover from him as he employed self-help through the instrumentality of some Army personnel who confiscated his vehicle of equivalent value to the money indebted. See pages 56-67 of the record of appeal.

​The Court below took argument on the application for summary judgment on 5th February, 2018 and reserved its Ruling to the 13th February, 2018. See pages 70-71 of record of appeal. In its Ruling, the Court refused to transfer the matter to the General Cause List and rather, entered summary judgment against the Appellant having considered the Exhibits attached to the application for summary judgment as well as the counter affidavit filed by the Appellant and based on the admission made by the Appellant in both his statement of defence (pages 25-29 of the record of appeal) and the counter affidavit. See Pages 71-82 of the record of the appeal.

Dissatisfied with the judgment of the Court below, the Appellant has appealed to this Court vide his Notice of Appeal dated and filed on the 13-3-2018 containing two grounds of Appeal. The said Notice was amended on the 8-10-2019.

ISSUES FOR DETERMINATION:
The Appellant formulated two (2) issues for determination as distilled from grounds 1 and 2 of the Notice of Appeal respectively as thus:
1. Whether the Court below acted rightly, when it entered summary judgment against the Appellant on the ground that his counter affidavit did not disclose good and meritorious defense.
2. Whether the Court below was right to have disregarded the Appellant’s counter claim on the grounds it raised suo motu, without affording the parties opportunity to be heard on the issues.

​On the part of the Respondent, there were no appearances for the Respondent despite evidence of service of hearing notice. The Respondent’s brief of argument filed into Court on the 28-9-2020, was also filed clearly out of time with no application filed to have same regularized. The Respondent’s brief therefore, clearly adjudged to be ex facie incompetent was struck out in limine and the Court proceeded to hear the Appeal based on the brief of argument of the Appellant. The Appellant’s brief of argument dated 21-1-2019 and settled by A. I. ALIYU ESQ., was filed on the same date but deemed properly filed and served on the 8-10-2019.
This Appeal shall however, be determined based on the issues nominated by the Appellant due to the apparent failure of the Respondent to have his brief of argument regularized. Although this appears to put the Appellant at a position of advantage, but in reality it does not. The judgment of the Court below is still in favour of the Respondent and for this reason the Appellant still has to show that the judgment of the Court below was wrong. See the case of CAMEROON AIRLINES vs. MR. MIKE E. OTUTUIZU (2011) LPELR-827 (SC).

SUBMISSIONS OF COUNSEL:
ISSUE ONE:
Whether the Court below acted rightly, when it entered summary judgment against the Appellant on the ground that his counter affidavit did not disclose good and meritorious defense?
The submission of learned Appellant’s Counsel in arguing this issue, is that the Court below erred in law when it held that the Appellant’s counter affidavit did not disclose a defense on the merit, good enough to warrant transferring the matter to the General cause list. Counsel therefore contended that an application for summary judgment procedure is generally employed in less or non-contentious liquidated claims, where it is manifestly obvious that the Defendant has no defense. See FORTUNE INTERNATIONAL BANK PLC vs. CITY EXPRESS BANK LIMITED (2012) 6 NWLR (PT. 1319) 86.

Similarly, Counsel argued that an application for summary judgment is only granted at the discretion of the Court, where Defendant does not have any good defense on the claim and that this discretion is not exercised as a matter of course, but judiciously and judicially. In considering an application for summary judgment, Counsel further argued that the guiding fact is whether the Defendant has disclosed a good defense on the claim of the Plaintiff or not. See BANK PLC vs. CITY EXPRESS BANK LIMITED (SUPRA). Counsel also referred to Order 11, Rule 5 (1) of the Sokoto State High Court (Civil Procedure) Rules, 2015 and contended that in the instant appeal, Defendant disclosed “a good defense” on the claim of the Claimant and that the trial Court is duty bound to refuse the application for summary judgment, and instead, grant leave to the Defendant to defend the matter after transferring same to general cause list for normal determination of the matter.

In further arguing this Appeal, learned Counsel for the Appellant contended that the Appellant’s counter affidavit raised two spheres of defense. Firstly, that the Respondent has nothing to recover or claim from him, because he had employed self-help to confiscate his car, a Mercedes Benz with Registration No. SRZ 321 AC of equivalent value to the money he is indebted to him and; secondly, that in the process of confiscating his car, the Respondent had used some Army personnel, who subjected him to arrest, detention, threat, intimidation and harassment.  See page 56 – 60 of the record of appeal.

The further contention of learned Counsel is that notwithstanding the material and meritorious defense raised by the Appellant, the Court below decided to shut its eyes and held that the Appellant’s counter affidavit did not disclose a good defense. On the question what constitutes a good defense, Counsel referred this Court to the case of MACAULAY vs. NAL MERCHANT BANK LTD.  4 NWLR, (PT. 144) 345; NISHIZAWA vs. JETHWANI (1984) 12 S.C. 234.

Counsel also submitted that when once a Defendant has a genuine defense in law or fact, or where the Defendant shows that he has a fair case for defense, or reasonable ground for setting up defense or triable issue or arguable defense or fair possibility that he has a bonafide defense, he can be said to have good defense and ought to be given leave to defend the action. See McGREGOR ASSOCIATES vs. N.M.B. (1996) 2 SCNJ 72 @ 82.

In addition, Counsel argued that where the Defendant has raised a counter claim connected with the fact of the Claimant’s claim (as in the instant appeal), that, that’s “a good defense”. See the case of MORGAN & SONS vs. MARTIN JONHSON & CO. (1949) 1 KB 107, where the Court had this to say:
“Where the defendant’s pleadings, set off or counter claim arising out of the subject matter of dispute is connected with the ground of defense, an unconditional leave to defend should be ordered, even if the defendant admits the whole or part of the plaintiff’s claim”
(Underlined, that of Counsel for emphasis)
See also F. NWADIALO, CIVIL PROCEDURE IN NIGERIA, 2ND EDITION @ P. 523.

Counsel also submitted that in the instant appeal, the Appellant has raised a counter claim in line with the rule permitted in MORGAN & SONS vs. MARTIN JONHSON & CO (supra), and that for that reason, the Court below ought to have automatically transferred the case to general cause list.

Learned Counsel also contended that there is a nexus between the debt owed the Respondent and his confiscated vehicle as it was because of his indebtedness to the Respondent that his vehicle was confiscated in the first place. See pages 56-60 of the record.

On the failure to join the Army as a party, which the Court below made a reason for declaring that the Appellant’s depositions did not disclose a good defense, Counsel argued that the purpose of joining a party to a suit is to make the person bound by the decision of the Court. See ABUBAKAR DUDU MOTORS vs. KACHIA (SUPRA); ALL PROGRESSIVE CONGRESS vs. PEOPLE’S DEMOCRATIC PARTY (2015) 15 NWLR (PT. 1481) P. 1 AT PAR. F-G per NWGUTA, JSC, who had this to say;
“Except where statutorily provided, it would not make sense to join anybody as a party, where no complaint is made against such person”. Arising from the foregoing, Counsel argued that in the instant appeal, the Appellant did not complain or seek any relief against Army personnel, who did the confiscation of his vehicle at the prompting of the Respondent; therefore, the failure to join the Army personnel would not affect the defense raised by the Appellant or render such a defense baseless as wrongly held by the Court below. Moreover, the army personnel in question only acted on behalf of the Respondent. This technically means that they acted as agent of the Respondent. Therefore, since the Respondent is already joined as party in the suit, the necessity to join those army personnel is superfluous. Counsel therefore urged this Court to resolve this issue in favour of the Appellant.

ISSUE TWO:
Whether the Court below was right to have disregarded the Appellant’s counter claim on the grounds it raised suo motu, without affording the parties opportunity to be heard on the issues.
The argument of Counsel here is that the Court below erred and acted prematurely when it struck out or disregarded the Appellant’s counter claim, which sought for declaratory reliefs, damages and injunction while considering application for summary judgment. The contention of Counsel is that an application for summary judgment procedure is meant to only deal with less or non-contentious liquidated claim. He said that in essence the procedure is not meant to consider any issues other than one for liquidated claims. In other words, he said that the procedure is not meant to deal with situation involving claim for declaratory reliefs, damages or injunction as in the case of the Appellant’s counter claim as reflected on page 30 of the record. See the case of BANK PLC vs. CITY EXPRESS BANK LIMITED (SUPRA).

​In the instant appeal, Counsel contended that the Appellant raised a counter claim against the Respondent and sought for declaratory reliefs, damages or injunctions. See page 30 of the record. However, that in considering the application for summary judgment rather than transferring the matter to general cause list, in order to properly determine the Appellant’s counter claim, the Court below wrongly disregarded same and got it struck out. Counsel finally urged this Court to resolve this Appeal in favour of the Appellant and strike out the judgment of the Court below.

RESOLUTION OF APPEAL:
The Summary Judgment Procedure, which has since replaced the old Undefended List Procedure in the High Court Civil Procedure Rules of most States of the Nigeria, is designed to facilitate the quick, speedy disposition of cases especially where the claim is for the recovery of debt or a liquidated sum as in the instant case. The procedure is profoundly useful where the facts relied upon are straight forward, simple and largely uncontested. In a good number of cases judgment may be entered for the claimant, where the defendant has been unable to put forward a good defense on the merit thus, side-stepping or obviating the need for a laborio us and lengthy trial of the facts. See the cases of MACAULAY vs. NAL MERCHANT BANK LTD (1990) 4 NWLR (PT.144) 283; NISHIZAWA LTD vs. JETHWANI (1984) 12 S.C. 234; OKAMBAH vs. GANIYA SULE (1990) 7 NWLR (PT.160) 60.
It is well known fact that the proper response to an Order 11 Rule 1 application is for the Defendant/Respondent to file and serve its Statement of Defense, witness list, witness deposition, Exhibits list and copies of listed exhibits, or Respondent’s address and counter – affidavit (if any). It is of course, well settled in a number of decided cases, that the mere filing of processes under Order 11 Rule 4 will not automatically open the doorway to a plenary trial for the Defendant. The Court must be truly persuaded that the Defendant has a good defense on the merit as opposed to a sham defense. It is, of course, the responsibility of the Court not to allow itself to be hood-winked by cleverly drafted affidavits or pleadings. The Court must, so to speak, separate the wheat from the chaff and zero-in on the defense (if any).
This does not mean that the Court at this stage of the proceedings should expect an iron-cast defense from the Defendant. That is to say, that at this stage, the Court, in considering the Defendant’s defense, must do so with a good measure of liberality, while the Defendant’s defense must, as a minimum, disclose the following attributes:
1. Deal specially with the Claimant’s claim and state clearly and concisely what his defense is and what facts are relied upon in support of same.
2. State whether the defense alleged goes to the whole or part of the claim and if the latter specify the part.
3. Where the Defendant claims not to be so indebted to the Claimant, state the grounds on which the Defendant relies as showing that he is not so indebted. A mere general denial of indebtedness being insufficient.
4. Where the Defendant claims not to be indebted to the Claimant in the amount claimed or any part thereof, state why the Defendant is not so indebted and he must state the real nature of the defense relied on.
5. Where the defense relied upon is fraud, state the particulars of fraud; a mere general allegation of fraud being without consequence.
6. In all cases, give sufficient facts and particulars to show that there is a bona-fide defense. See UTC NIG LTD vs. CHIEF PAMOTEI (1989) 2 NWLR (PT.103) 244; OKAMBAH vs. GANIYA SULE (Supra); MACGREGOR ASSOCIATES LTD vs. NMB LTD (1996) SCNJ 72; and a host of other cases on the subject.

​The case of the Claimant/Respondent is for the recovery of the sum of Five Million, Twenty Five Thousand Naira (N5, 025,000.00) indebted to him by the Appellant. This represents the outstanding balance of the purchase price of petroleum products, which the Respondent sold to the Appellant. See pages 1-23 of the record of appeal for the writ of summons and accompanying processes, and pages 42-55 of the record of appeal for the motion on notice for summary judgment.

In response to the Respondent’s application for summary judgment, the Appellant filed a counter-claim contending that the Respondent has nothing to recover from him, as he employed self-help through the instrumentality of some Nigeria Army personnel who confiscated his vehicle of equivalent value to the money indebted. See pages 56-67 of the record of appeal.

​The Court of first instance took argument on the application for Summary judgment on the 5th February, 2018 and reserved judgment till 13th February, 2018. See pages 70-71 of record of appeal. In its judgment, the Court refused to transfer the matter to the General cause list and rather, entered summary judgment against the Appellant having considered the Exhibits attached to the application for Summary Judgment as well as the counter affidavit filed by the Appellant, based on the admission said to have been made by the Appellant in both his Statement of Defence (pages 25-29 of the record of appeal) and his counter affidavit. See Pages 71-82 of the record of the appeal.

I have carefully considered the entire Appellant’s processes, particularly its Statement of Defence, Counter – Affidavit and deposition of the witness of the Defendant, Aliyu Abubakar Sokoto. The Defence put up by the Appellant is that he is not indebted to the Respondent as Claimant and also filed a counter-claim of the sum of N5, 000,000.00. The defense of the Appellant is that he is no longer indebted to the Respondent, having forfeited his Mercedes Benz Car of equivalent amount to the amount originally owed when the Respondent engaged the services of men of the Nigeria Army, who confiscated the vehicle and handed same over to the Respondent.

To succeed in persuading the Court to send this matter to the general Cause list;
1. It is elementary, that in his processes, the Appellant as Defendant is expected to disclose the existence of a bona-fide defense on the merit to the claims.
2. Disclose the existence of material facts worthy of further elucidation at the trial (if any). Now, a material tri-able issue or fact may be described as an uncontroverted material allegation, which averment requires further investigation by the trial Court, to unravel or unearth its veracity or otherwise. Such material allegation must disclose a defense that cannot be dismissed with the wave of the hand and not a mere sham or after-thought.
The Respondent cannot afford to be evasive. He must be seen to condescend on the particulars of his defense and as far as possible deal specifically with the claims.

The Respondent herein has alleged that the Claimant has in his custody a Mercedes Benz Car of his of equivalent value, which was confiscated by men of the Nigeria Army and who resorted to handing over same to the Respondent. This claim or allegation made by the Appellant has not been challenged by the Respondent. Perhaps, the question to address here is whether it would be appropriate to sweep under the carpet, the claim of the Respondent who alleged that his confiscated Mercedes Benz Car of equivalent amount to the amount claimed is now in the custody of the Respondent?

In summation, for all the reasons adumbrated here above, this Court is persuaded that the Appellant as Defendant has condescended sufficiently on the particulars of his defense and, counter-claim; consequently, succeeded in disclosing the existence of triable issues worthy of putting this matter on the General Cause List for a plenary trial of the facts. No poring over dusty volumes is required to arrive at this decision, which the Court below refused to do.

In the final analysis, this appeal succeeds and it is accordingly allowed. Consequently, the judgment of the High Court of Sokoto State, delivered on the 13th February, 2018 in suit No: SS/70/2017 wherein summary judgment was entered against the Appellant is hereby set aside. While the case file is remitted back to the Hon. Chief Judge of Sokoto State for assignment to another judge for a trial de novo, this Court ORDERS, avoidance of doubt that the matter in this case is transferred to be heard under the General Cause List of Court. Cost of N50, 000.00 is awarded in favour of the Appellant against the Respondent.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading in draft the lead judgment of my learned brother, Oho JCA. I agree with his admirable resolution of the two issues for determination in this appeal. For want of better words or ideas, I adopt all the reasonings of my learned brother to also allow this appeal and set aside the judgment of the learned trial judge. I also abide by all the consequential orders, including the order for costs.

ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother FREDERICK O. OHO JCA. I agree with his reasoning and conclusion that the Appellant as Defendant has condescended sufficiently on the particulars of his defence and counter claim, consequently succeeded in disclosing the existence of triable issues worthy of putting this matter on the General Cause List.
The Appeal succeeds. I abide by the consequential order in the lead judgment.

Appearances:

A. I. ALIYU, ESQ. For Appellant(s)

…For Respondent(s)