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SULEIMAN JAIYEOLA MOSHOOD v. UCHE AKUBI (2014)

SULEIMAN JAIYEOLA MOSHOOD v. UCHE AKUBI

(2014)LCN/7164(CA)

In The Court of Appeal of Nigeria

On Friday, the 2nd day of May, 2014

CA/K/305/2008

RATIO

ESSENCE OF A SUMMARY JUDGMENT PROCEDURE

It is trite law that under 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. PER ABDU ABOKI, J.C.A.

 

WORDS AND PHRASES:  COUNTER CLAIM

It is trite law that a counter claim is an independent claim which needs not relate to or in any way be connected with the plaintiff’s claim. The fact that original action has succeeded is not a lawful reason to discontinue the determination of a counter claim of the defendant. See; Lewis Vs UBA Plc (2006) 1 NWLR (Pt.962) at page 566.
A counter-claim is by its nature, a cross-action raised in the defendant’s statement of defence against the plaintiff. It is an independent suit which for convenience of procedure is combined in another action. It is not a defence but an action in itself. See; Gawon Vs Ike-Okongwu (2003) 104 LRCN 10.
In Overseas Construction Ltd Vs Greek Enterprises Ltd (1985) 3 NWLR (pt. 13) Page 401 at 419: Oputa JSC emphasized that:
“The duty of a trial Court is limited and confined to trying the issues arising from the pleadings. A trial is not to embark on an academic exercise in which all sort of questions are discussed at will without reference to the pleading…”PER ABDU ABOKI, J.C.A.

 

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

Between

SULEIMAN JAIYEOLA MOSHOOD Appellant(s)

AND

UCHE AKUBI Respondent(s)

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Summary Judgment/Ruling of the Kaduna State High Court delivered on the 11th July, 2008 by Luka D. Aba J.

The Respondent was the Plaintiff at the lower Court while the Appellant was the 2nd Defendant. The facts of the case leading to this appeal are as follows:
The Respondent commenced action against one Philemon Abu Akuki (Trading under the name S.O.J Ventures).
Instead of serving the said Philemon Abu Akuki (Trading under the name S.O.J Ventures) with the Court processes, same were served on Alhaji Suleiman Jaiyeola Moshood who was not a party. On the application of the said Alhaji Suleiman Jaiyeola Moshood by a motion on notice dated 14th March 2008, the service of processes on him was set aside by the trial Court on 11th April, 2008.
By a motion Ex-parte dated 17/04/2008, the Respondent as Plaintiff moved the trial Court to join the Appellant as a party and the application was granted on 25/04/2008. The Respondent by writ of summons dated 2nd May, 2008 brought under Order 11 Rules 1 to 3 (Summary Judgment) claims jointly and severally against the defendants, the following relief(s);
1. “The sum of N704,600 being balance of purchase price of Dangote/Kano flours and arrears of credit.
2. The sum of N50,000 solicitor’s fees paid by the plaintiff as shown on exhibit TC.3
3. The sum of N50,000 General damages and cost of this action.
4. The sum of N100,000 profit that will accrue to the plaintiff monthly, if he had put the money N1,085,000.00 into business from October 2007 to the date of judgment and
5. 10% interest on the judgment sum from date of judgment until the entire judgment sum is fully liquidated.”

The Appellant having being joined as the 2nd defendant accordingly filed his defence accompanied with a counter claim.

The trial Court in its considered Summary Judgment held as follows;
“….Consequently I hold that the plaintiff’s case is well made and proved under this procedure as the fundamental facts have been well established by him. Judgment is accordingly entered in favour of the plaintiff and against the defendants jointly and severally as follows;
1. N704,600 being balance of purchase price of Dangote/Kano flours and arrears of credit.
2. The amount paid by the plaintiff as solicitor’s legal fees per exhibit TC.3 is N10,000. This N10,000 is granted plaintiff as payment for legal fees.
3. General damages are assessed at N30,000 inclusive of the cost of this action.
4. The N100,000 profit claims fails as there is no evidence backing it and particularly more so that the plaintiff is not a banker, financial institution or registered money lender and the parties did not expressly include this head of claim in their contract, in the event of breach.
5. 10% interest is granted to the plaintiff on the judgment sum per annum from today, till the whole sum is finally liquidated, since it is statutorily provided for.”

Dissatisfied with the said Summary Judgment of the lower Court, the Appellant filed a notice of appeal dated 8th August, 2008 containing four grounds. Parties in accordance with the rules of this Court filed their respective briefs of argument.

The Appellant distilled three issues for determination from four grounds of appeal as follows;
1. Whether the learned trial judge was right in determining the Respondent’s case under Summary Judgment Procedure of the Kaduna State High (Civil Procedure) Rules 2007 regard being had to the nature of the claims, the evidence proffered by the Respondent and the defence put up by the Appellant.
2. Whether the Respondent as Plaintiff proved that the Appellant was the proprietor of S.O.J Ventures and thus principal to Mr. Philemon Abu Akuki and thus liable for his action as found by the Hon. Learned Trial Judge.
3. Whether the Learned trial Judge was right to have dismissed the counter-claim filed by the Appellant against the Respondent “in limine” without calling on the parties to state their case by way of defence.

The Respondent in his brief distilled three issues for the determination of this appeal as follows;
1. Whether the Respondent’s case at the Court below was not capable of determination under Summary Judgment procedure (Order 11 Kaduna State High Civil Procedure Rules 2007) considering the Respondent’s claims, his evidence and nature of the defence/counter-claim put up by the Appellant?
2. Whether from the admitted facts in the pleadings, documentary exhibits thereto, affidavit evidence in this case the Appellant is not a disclosed principal to the 1st defendant?
3. Whether counter claim raised or incorporated in the defence to the main suit brought under Summary Judgment procedure (Order 11) will automatically be transferred to general cause list for hearing irrespective of the merit or lack of merit of the counter claim?

The issues as couched by the Appellant have captured the essence of the dispute between the parties. Same will be adopted for the determination of this appeal.

ISSUE ONE
Whether the learned trial judge was right in determining the Respondent’s case under Summary Judgment Procedure of the Kaduna State High (Civil Procedure) Rules 2007 regard being had to the nature of the claims, the evidence proffered by the Respondent and the defence put up by the Appellant.

It is the contention of the learned Appellant’s counsel that the Appellant had fulfilled the requirement of Order 11 Rule 4 Kaduna State High Court (Civil Procedure) Rules 2007, which provides as follows;
“Where a defendant served with the processes and documents referred to in the rule 1 of this order intends to defend the suit, such defendant shall not later than the time prescribed by the rules for fitting a defence, file
a. A statement of defence
b. Depositions of witnesses
c. The exhibits to be used in the defence
d. A written address in reply to the application for summary judgment.”

It was contended on behalf of the Appellant that Order 11 Rule 1 Kaduna state High (Civil Procedure) Rules 2007 imposes two burdens on a plaintiff who want to commence an action under the Order. The section is hereby reproduced as follows;
“where a plaintiff believes that there is no defence to the claim, the plaintiff shall file with the originating process the statement of claim, the exhibits, the depositions of the plaintiff’s witness and an application for summary Judgment which application shall be supported by an affidavit stating the grounds for the plaintiff’s belief and a written address in respect thereof.”

Learned Appellant’s counsel maintained that a statement of claim or defence cannot take the place of evidence, nor can exhibits per se without deposition by way of affidavit. Thus the success or failure of a plaintiff’s case depends on the strength or otherwise of his sworn belief and the deposition of his witness supported by an affidavit implicating the defendant. The Court was invited to PW1’s deposition as contained in page 14 of the printed record.

It was argued on behalf of the Appellant that for a case filed under Order 11 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 2007 to succeed, the evidence contained in the deposition of the plaintiff’s witness and an affidavit stating the grounds for believing that the defendant has no defence must be prima facie direct, convincing and admits no controversy.
Learned counsel to the Appellant contended that the Respondent joined the Appellant as a party on the allegation that the 1st defendant was his agent. He submitted that the following questions need to be answered;
Was there proof of Appellant being the owner of S.O.J Ventures? Was the trial Court right in deciding the case without calling oral evidence? And are general damages, solicitor’s fees and profit decided under Order 11 of the Kaduna State High Court (Civil Procedure) Rules 2007?

Learned counsel submitted that even the trial Court in its finding was of the view that the proper thing to do was to call oral testimonies to resolve the issues, but it went to consider extraneous pleadings to overturn its earlier finding. He referred the Court to page 50 lines 23-24, page 50 lines 24-25, page 50-51 and line 26 at page 51 down to 56 of the printed record.
Learned counsel submitted that the trial Court made its conclusion and reached it decision based largely on the counter claim (pleadings) of the Appellant and defence to counter claim filed by the Respondent which is an error. He referred the Court to the case of; Unokan Enterprises Ltd & Or. Vs Omuvwie & Ors (2005) ALL FWLR (Pt.262) 501 at 522.

It was argued on behalf of the Appellant that considering the nature of the claims, they qualified to be transferred to the general cause list and should not have been determined under the Summary Judgment procedure.
The Appellant further argued that a claim for damage is always deemed to be in issue in any action. Since the Appellant did not admit Respondent’s claim for damages, the trial Court was therefore in error to have awarded general damages to the Respondent without any oral evidence in support. He referred the Court to the case of; Lambert Sunday Iwueke Vs Imo Broadcasting Corporation (2005) ALL FWLR (Pt.288) 1025 at 1043.

Learned counsel maintained that the Appellant had denied being the employer of the 1st defendant as well having anything to do with the company S.O.J Ventures. He submitted that the trial Court was wrong in determining the case under the Summary Judgment procedure (Order 11 of the Kaduna State High Court (Civil procedure) Rules 2007).
Learned counsel urged the Court to resolve this issue in favour of the Appellant.

In his response on this issue the learned Respondent’s counsel submitted that there is no restriction on the relief that can be granted under Order 11 Rule 1.
He contended that the only delimiting factor under the order is that the plaintiff believes that there is no defence on the merit to his case. In other words the plaintiff’s case must be so straight forward and unarguable in law to necessitate full trial. He referred to the cases of;
Ataguba & Co. Vs Gura Nig. Ltd (2005) ALL FWLR (Pt.258) pg.1219 at 1230.
Macaulay Vs Nal Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283.

Learned counsel submitted that the case of Lambert Sunday Iwueke Vs Imo Broadcasting Corporation (supra) cited by the Appellant counsel is not helpful, that case concerns a judgment in default of pleadings in a libel case. He also referred to the case of; Planwell Watershed & 1 other Vs Chief Vincent Ogala (2004) FWLR (Pt.189) page 1292.

It is the submission of the learned counsel that what is to be considered in this case is the Respondent’s evidence at the Court below the nature of the defence put by the Appellant and the surrounding circumstances.
He insisted that the Respondent as plaintiff have complied with the rule in filing his case at the lower Court for Summary Judgment and that the affidavit in support deposed to by Deborah Adeyemo is legally admissible and constitute evidence to the Respondent’s case at the lower. He referred the Court to the case of Nwosu Vs Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) page 715 – 718.

Learned counsel maintained that the Respondent at the lower Court has by his affidavit evidence and other accompanying documents discharged the legal and evidential burden placed on him by Sections 135, 136 and 137 of the Evidence Act to warrant the Appellant to put in some evidence on the scale for purposes of weighing both on an imaginary scale of preponderance of evidence. He referred to page 6-8 of the printed record.

Learned counsel argued that the Appellant only filed the listed document in Order 11 Rule 4 of Kaduna State Civil Procedure Rules 2007 without filing a counter affidavit to the Respondent affidavit in support of the motion for Summary Judgment. He argued that by the Provision of Order 15 Rule 1-3 a party intending to oppose a motion or an application other than on point of law must file a counter affidavit and not a written address only. He submits that the Appellant did not file any counter affidavit in accordance with Order 15 Rules 1-3.
He insisted that by Order 15 every application under these rules, Order 11 inclusive are subject to Order 15 and the best form of contradicting the averments in an affidavit is by filling a counter affidavit. He submitted that the Appellant not having filed any counter affidavit has placed nothing on the imaginary scale of evidence.

Learned Respondent’s counsel argued that though Order 11 Rule 4 did not expressly exclude the filling of counter affidavit it made no specific provision for it. He contended that Order 11 Rule 4 by implication allows a Court to look at the pleadings of the parties especially that of the defendant in the determination of Summary Judgment application, in order to determine whether there is a triable issue. He referred the Court to the cases of
Nishizawa Ltd Vs Jethwani (1982) 12 S.C 234.
Carrara Marble Co. Ltd Vs Bolado Ltd (1970) NCLR 561 at 565.

Learned counsel maintained that the summary of the Appellant’s case at the Lower Court was mere general denial, and that it is settled that a mere general denial without condescending to particulars is not enough to justify a transfer of a case under undefended list procedure to full trial. He referred the Court to the cases of;
Catiacommericroe Importaceo S. A Vs Sanusi Brothers Nig. Ltd (2000) 2 CNQR pg. 1515-1517.
Nishizawa Ltd Vs Jethwain (supra).
U.T.C Nig. Ltd Vs Pamotei (1989) 2 NWLR (Pt.103) 244.
He urged the Court to resolve this issue in favour of the Respondent.

It is trite law that under 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.

The following are some preliminary requirements to the application of Order 11 (Summary Judgment Procedure) Rules. They are;-
1. A statement of claim must have been indorsed on, or attached to the writ of summons served on the defendant;
2. The defendant must not only have been served, he must also have entered appearance;
3. There must be an affidavit made by the plaintiff or by any person who can swear positively to the fact verifying the cause of action and the amount claimed with a statement that the defendant has no defence to the action;
See; Thor Ltd Vs FCMB Ltd (Supra) at page 710.
Sodipo Vs Lemminkainen OY (1986) 1 NWLR (Pt.15) page 220 at 230-231.

In the instant case the Respondent at the lower Court claimed against the 1st and 2nd defendants jointly and severally. It is very clear from the record that the 1st defendant was not served, and that he equally did not enter appearance.

In Sodipo Vs Lemminkainen OY (supra) at 231. The Supreme Court held that the defendant can oppose Summary Judgment on any of the following grounds;
1. That the case does not fall within the scope of the applicable rules;
2. That there have been some procedural irregularities; or
3. On his filling a defence showing that there is an issue or question in dispute which ought to be tried.

A Court has the duty to consider the statement of defence filed in order to see if the defendant had shown defence to the action. See; U.T.C (Nig) Ltd Vs Pamotei (1989) 2 NWLR Pt.103 244. In FMG Vs Sani (1990) 4 NWLR (Pt.147) p9.688 at 710 the Supreme PER; Karibi Whyte JSC, held as follows;
“…in all cases the Summary Judgment procedure should only be applied and leave to defend refused in very clear cases where the defendant has not on the affidavit or statement of defence disclosed a defence on the merit.” (underline mine for emphasis)

In the instant case it is the Appellant’s contention that his defence at the lower Court shows question in dispute which ought to be tried.
At this point it is pertinent to reproduce some relevant portion of the Respondent’s pleading (claims) at the lower court against the Appellant/defendant for ease of reference;
“…2. That the 1st defendant is the agent and sales man of SOJ Ventures in charge of Kafanchan area, operating the business of buying and selling of bakery materials and having their head office in Kaduna and branch at hospital road, Kafanchan, Kaduna State within the jurisdiction of this.
3.That the 2nd defendant is the managing director of SOJ Ventures and another outfit named DOJ Global Communication and investment limited and the 1st defendant is the agent of the over see (sic) the kafanchan branch of the (sic) various outfit including SOJ Ventures.
4. That on the 29th September, 2007 the defendant as agent of the SOJ Ventures came to the stores of the plaintiff at Wamba Street, Kafanchan and purchase 200 bags of Dangote/Kano flour worth the sum of N990,000 and added to an already incurred liability of N195,000 price of the different set of bags of flour making a total sum of N185,000 on credit.
5. That after several demand by the plaintiff for payment on the 5th October, 2007 the defendant made a payment of N100,000 remaining balance of N1,085,000 all these facts is evidenced by the invoice sales document signed by the all parties dated 2nd September, 2007 attached here as exhibit TC1.
6. That on the 9th October, 2007 the defendant having been confronted by the plaintiff for payment of the balance N1,085,000 gave a United Bank for Africa (UBA) cheque carrying his full names for a sum of N200,000 in the name of Samuel Nwosu (a sales boy employed by the plaintiff) which cheque when presented to the bank was returned unpaid (bounce). A copy of the mid cheque is hereby attached as exhibit TC2.
12. WHEREOF the plaintiff claim against the defendant jointly & severally as follows;
i. The sum of N704, 600 being balance of purchase price of Dangote/Kano flours and arears of credit.
ii. The sum of N50,000, solicitor’s fees paid by the plaintiff as shown on exhibit TC.3
iii. The sum of N50, 00 general damages and cost of this action.
iv. The sum of N100,000 profit that will accrue to the plaintiff monthly, if he had put the money N1,085,000.00 into business from October 2007 to the date of judgment and
v.10% interest on the judgment sum from date of judgment until the entire judgment sum is fully liquidated.”

In his response to the above averments the Appellant as defendant at the lower Court stated in his defence inter alia;
“2. The 2nd defendant vehemently denies paragraph 2 of the statement of claim and further states that he has never ran an outfit by name and style SOJ Ventures nor is there any known to him in Kaduna with branch office in kafanchan which involved in buying and selling of bakery materials.
4. In further answer to the paragraph 3, the 2nd defendant says he never been Managing Director to either a SOJ Venture or DOJ Global Communication & Investment Limited and he had never known the 1st defendant to be an agent to any mid outfits.
5. Having not provided the particulars as to which of the defendants, he was referring to in paragraph 4 of his statement of claim, the 2nd defendant is not in position to read to the said paragraph but further states he neither had any business with the plaintiff either personally nor through an agent.
6. It is total falsehood to aver as did plaintiff in paragraph 5 that parties signed exhibit TC.1 annexed to his claim. The said paragraph is denied as 2nd defendant did not sign it nor was he aware of it.
8. The 2nd defendant denies the 6th paragraph of the statement of claim and further states that neither he nor the company he work for as Managing Director was involved in the said business if any. He further states that exhibit TC.2 is a personal cheque of the 1st defendant.
10. The 2nd defendant denies paragraphs 9, 10, 11, and 12 of the statement of claim and further states that those paragraphs have no connection with him.
11. Whereof the 2nd defendant denies the claim of the plaintiff in its entirety and will at the hearing urge the Court to dismiss the claim against him with substantial cost.”

The trial Court considering the pleadings of parties above observed in its findings at page 10 of its judgment observed as follow;
“….in fact the 2nd defendant denied running an outfit by S.O.J Ventures. These positions would ordinarily be enough to call for oral testimonies.”

The 2nd defendant’s statement of defence contained denials which raised substantial issues or questions of facts to be at least investigated or tried. See; Thor Ltd Vs FCMB Ltd (Supra). The defendant ought to have been allowed to defend the action.

In the instant case the grounds set out in the defendant’s affidavit are not frivolous; the grounds show the existence of a defence and a dispute between the parties. The defendant/respondent also alleged that no valid contract had existed between the parties, this is also a defence on the merit. Therefore, lower Court ought not to have heard the case under the summary judgment procedure; the suit should have been transferred to the general cause list. See;
Household Utensils Dealers Vs Ifeanyichukwu Ventures Nig. Ltd (2005) ALL FWLR Pt 257 at 1573.
Jos North Local Government Vs Daniyan (2000) FWLR Pt.21 at 872.

The question whether the defence raised will constitute sufficient defence to the action on the merit is not an issue at that stage, since the Appellant is only seeking for leave of the Court to defend the action. Also a claim for damage is always deemed as an issue in any action, unless specifically admitted. In the instant case the trial Court ought to have allowed the Appellant to defend the action.
The failure of the trial Court to recognise this elementary principle constitutes a serious omission.
This issue is resolved in favour of the Appellant.
Having resolved issue one in favour of the Appellant, it will amount to an academic exercise to proceed and consider the second issue, since the procedure adopted by the trial Court was wrong.

ISSUE THREE
“Whether the Learned trial Judge was right to have dismissed the counter-claim filed by the Appellant against the Respondent “in limine” without calling on the parties to state their case by way of defence.”

It is prudent to consider the third issue for determination of this appeal which is on a counter claim, being a separate claim or action against the Appellant.
Learned Appellant’s counsel submitted that the Appellant apart from filing his defence to Respondent’s claim equally filed a counter claim against the Respondent. He referred the court to pages 19-23 of the printed record.
He contended that the Respondent/plaintiff’s defence to counter claim was filed sequel to a motion dated 6th June, 2008 which was granted on 13th June, 2008. The matter was thereafter adjourned for ruling. Learned counsel submitted that no mention was made of the counter claim, as it has not been part of the case, but it turned out to be included, as the trial court went on to equally rule on the counter claim.
He contended that the trial Court while ruling on the case went ahead to determine the counter claim in limine as follows;
“…The counter claim should instead have been made against the defendant and not the plaintiff here. In sum, it fails and is refused and dismissed in limine.”

Learned counsel contended that the counter claim is not brought under the Summary Judgment procedure to give the trial judge the power to rule on it without recourse to parties establishing their case by leading evidence. He argued that a counter claim is an independent action different from the original one, even the adjournment for ruling on the Summary Judgment did not affect it, since the defendant had filed a defence to it and there was no motion for adjournment by the Appellant.
Learned counsel submitted that in evaluating the case of the Respondent vis a vis the defence by the Appellant, the trial court considered together the pleading of the Appellant in respect of the counter claim as well as the Respondent’s defence thereto. He maintained, having reached his conclusion on the main action by the Respondent by taking into consideration the counter claim and defence in respect thereof, the trial fell into error of failing to appreciate that the two actions are independent of each other. He referred the Court to the case of Unokan Ent. Ltd & Or. (Supra) at page 522.
In conclusion he urged the Court to resolve this issue in favour of the Appellant.

In his response the learned Respondent counsel contended that set-off or counter-claim raised in frivolous defence in action under Summary Judgment does not constitute a defence for the purpose of transferring the suit to the general cause list for hearing. He referred the Court to the cases of;
Carrara Marble Co. Ltd Vs Bolado Ltd;
Nishizawa Ltd Vs Jethwain (supra).

He submitted that a counter claim even though a cross action derives its life wire from the main action and both are considered and determined together even in action filed under the ordinary writ procedure. They are proved or lost by the same evidence and not by separate trials.
Learned counsel argued that it is not the rule of practice and procedure that the main case will be heard and determined followed by the hearing and determination of counter claim. He submitted that both are heard and determined simultaneously and/or conjunctively. He insisted that counter claim and defence thereto relate back to the main claim and its defence and was rightly decided together. Learned counsel argued that action under Summary Judgment like in the instant case are decided summarily except where triable issue is disclosed either in the main claim or counter claim and none was disclosed in both claims hence the lower court was right in determining both summarily.
He urged the Court to resolve this issue in favour of the Respondent.

It is trite law that a counter claim is an independent claim which needs not relate to or in any way be connected with the plaintiff’s claim. The fact that original action has succeeded is not a lawful reason to discontinue the determination of a counter claim of the defendant. See; Lewis Vs UBA Plc (2006) 1 NWLR (Pt.962) at page 566.
A counter-claim is by its nature, a cross-action raised in the defendant’s statement of defence against the plaintiff. It is an independent suit which for convenience of procedure is combined in another action. It is not a defence but an action in itself. See; Gawon Vs Ike-Okongwu (2003) 104 LRCN 10.
In Overseas Construction Ltd Vs Greek Enterprises Ltd (1985) 3 NWLR (pt. 13) Page 401 at 419: Oputa JSC emphasized that:
“The duty of a trial Court is limited and confined to trying the issues arising from the pleadings. A trial is not to embark on an academic exercise in which all sort of questions are discussed at will without reference to the pleading…”

In the instant case the trial Court having found Respondent’s claim established and entered judgment under Summary Judgment against the Appellant, it should have allowed the Appellant to prove his counter claim. The trial Court ought not to have foreclosed the right of the Appellant to lead evidence to establish his counter claim.

Courts are duty bound to listen and to consider and determine matters presented to it no matter how stupid it may consider the argument of the litigants to be. See; Lewis Vs UBA Plc (supra) at Page 566.

This issue is also resolved in favour of the Appellant.

I found merit in this appeal and it is hereby allowed. The Judgment of the trial Court in suit No; KDH/KAF/11/2008 delivered by Luka D. Aba J. on 11th July, 2008 is hereby set aside.

The Chief Judge of Kaduna State is hereby directed to re-assign the case to another Judge of the Kaduna State High Court other than Luka D, Aba J. for trial denovo.
Parties to bear their costs.

DALHATU ADAMU, J.C.A.: I agree

THERESA NGOLIKA ORJI-ABADUA. J.C.A.: I agree.

 

Appearances

M. E. Chikezie Esq.For Appellant

 

AND

B. A. Abugu Esq.For Respondent