TRIUMPH (NIG.) LTD v. FORTEX INT’L AB
(2022)LCN/16496(CA)
In the Court of Appeal
(KANO JUDICIAL DIVISION)
On Friday, July 22, 2022
CA/K/154/2018
Before Our Lordships:
Boloukuromo Moses Ugo Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
TRIUMPH (NIGERIA) LIMITED APPELANT(S)
And
FORTEX INTERNATIONAL AB RESPONDENT(S)
RATIO
CONDITIONS FOR A LEGAL DOCUMENT TO BE COMPETENT
Leaving the requirements of Rule 10 of the Rules of Professional Conduct for Legal Practitioners and coming to how legal documents should be signed by lawyers, it has been also settled that for legal documents to be competent they must be signed as follows:
1. The signature of counsel which may be in any contraption.
2. The name of counsel clearly written.
3. Who counsel represents.
4. Name and address of legal firm.
See SLB Consortium Ltd v. NNPC (2011) 9 NWLR (t. 1252) 317 AT 336-337; Dr. Raji v. University of llorin (2018) LPELR-44629 (SC); GTB Plc v. Innoson Nigeria Ltd (2017) 16 NWLR (PT 1591) 181 AT 198-199; llukwe v. Okeke (2017) ALL FWLR (Pt. 900) 537 AT 560. All these cases also emphasize the point that failure to disclose the lawyer who signed a legal process is not a mere irregularity but a fundamental error and renders the process void. PER MOSES, J.C.A.
THE OBJECT OF A SUMMARY JUDGEMENT
Now, this is the way the trial Judge reasoned in entering partial summary judgment for appellant.
“Now, the object of the summary trial procedure is as counsel to the defendants rightly stated to determine expeditiously a plaintiff’s claim by entering summary judgment where the defendant clearly has no legal defence to the action and to avoid a situation where the defendant who has no prima facie defence would delay and frustrate the plaintiff’s claim, see Dala Air Services Ltd. v. Sudan Airways Ltd. (2005) 3 NWLR pt. 912 394 at 687. The defendant need not show a complete defence or one that will succeed all he needs to show to get the matter transferred to the general cause list is the existence of a triable issue that is neither speculative nor a sham but one that when established would defeat the claim of the plaintiff. PER MOSES, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the 09/5/2019 interlocutory ruling of the High Court of Kano State of 09/5/2017 as rendered by Dije Aboki, J. in Suit No: K/543/2016 entering partial summary judgment for respondent against appellant. Respondent as Plaintiff in that Court claimed against the appellant as follows:
(a) An order of Court directing the Defendants for the payment of the sum of US$1,393,220.21 or the CBN approved equivalent thereat applicable on the date of judgment, being the sum of money owed and due to the Plaintiff from a contract of supply of tons of Reels of Kraft Liner Corrugated Boards by the Plaintiff to the 1st Defendant.
(b) An order of Court directing the Defendant for the payment of the sum of US$778,890.04 or the CBN approved Naira equivalent thereof applicable on the date of judgment, being the total accumulated interest charges accrued on the overdue invoices issued by the Plaintiff to the Defendants.
(c) An order of the Court directing the Defendants for the payment of interest on the principal sum owed in (1) at the rate of 10% per annum from the date of judgment until final liquidation of the entire sum.
(d) Cost of filing this suit in favour of the Plaintiff against the Defendants.
The contention of the Respondent in its application for summary judgment was that it supplied raw materials summing up to USD $1,393,220.21 on credit which appellant had failed to pay despite demands from it.
Appellant in its statement of defence notice of intention to defend accepted receiving the said supplies and its indebtedness to the respondent but asserted that its failure/delay in payment was caused by respondent’s own delay in supplying the goods which also affected its business so the case deserved plenary trial.
The trial Judge was however not persuaded by that argument of appellant. By her ruling of 30th May 2017, she concluded that the appellant’s indebtedness to the respondent was not open to doubt on the processes before the Court and so granted summarily respondent’s first, and third and fourth heads of respondent’s claims (the first relief less USD $66,549.99 found to have been already repaid by the appellant to respondent) but could not find her way clear in granting respondent’s second claim for USD $778,890.04 as accumulated interest charges and so ordered parties to file pretrial processes for the Court to try that claim.
Appellant is dissatisfied with that decision hence this appeal. It also sought and obtained the Court’s leave to raise for the first time the issue of non-signing of respondent’s motion for summary judgment by an identifiable lawyer the omission of the lawyer deponent of the affidavit supporting the application to affix his lawyer’s seal and stamp on his affidavit.
Appellant in its brief of argument settled by Kayode Amodu Esq. distilled the following two issues for determination of the appeal:
1. Whether the learned trial Judge was right to have assumed jurisdiction to entertain Respondent’s motion for summary judgment when same was not signed by an identifiable lawyer who should affix his stamp and seal and also when the affidavit in support of the motion does not bear stamp of the legal practitioner who deposed to and signed it.
2. Whether or not appellant’s counter affidavit in opposition to the motion for summary judgment disclosed sufficient facts which entitled him to defend the action.
Issue 1: On issue 1, Mr. Kayode Amodu for the appellant first pointed out that respondent’s application for summary judgment bears the names of three persons namely, Ayodeji Arowolo Esq. Idris Sani Esq, and Usaini Tudunwada Umar Esq. That atop those three names is a signature, but that signature is being just a contraption. Mr. Amodu submitted that it is practically impossible to ascertain who amongst the three persons named on the motion signed it as the name of the person who signed was not ticked.
To further compound the confusion, counsel submitted, the stamp and seal of one Usaini Tudunwada Umar Esq. was affixed to the motion, but it is practically impossible to tell if it is the same Usaini Tudunwada Umar Esq. that signed the motion, even more so as the first name listed on the process directly under the signature is that one Ayodeji Arowolo Esq., thus giving the impression that the signature may be that of Ayodeji Arowolo. So, assuming one is even minded to do that conjecture, counsel submitted, it would mean that the person who signed the process is different from the one whose stamp is affixed to it.
Counsel cited Tanimu v. Rabiu (2017) ALL FWLR (PT.900) 391 AT 410-412 PARA F- 3.7 G among other cases to argue that the need to properly identify the lawyer who signs a Court process and to link the stamp and seal of the lawyer to his signature is of paramount importance. He said by Rule 10 of the Rules of Professional Conduct for Legal Practitioners 2007(RPC) the effect of a lawyer not affixing his seal and stamp to a process prepared by him in his capacity as a legal practitioner is that the process is deemed not to have been properly filed. Counsel reproduced Rule 10 of RPC and submitted that the Appellant’s Motion on Notice as the time it was heard and ruled upon by the lower Court was not properly signed or filed. He submitted that Court lacks jurisdiction to entertain or take cognizance of a process that is not properly signed and filed before it as that goes to the root of the said process and renders it incompetent and cited Senator Bello Sarkin Yaki v. Senator Atiku (2019) ALL FWLR (PT 810) 1026 AT 1054 Para E (S.C) the Supreme Court held that:
“In the case at hand, the process filed in breach of Rule 10(1) can be saved and its signing and filing regularized by affixing the approved seal and stamp on it. It is a legal document improperly filed and the fixing of the seal and stamp would make the filing proper in law. Since this was not done, the Court cannot take cognizance of a document not properly filed and the filing not regularized.”
Learned counsel submitted that the confusion caused by the listing of the names of several lawyers on the motion paper without indicating which one amongst them signed the process would only put the Court to the task of trying to decipher who actually signed the process – a task he said which will turn the Court to a forensic laboratory which it is not and cited Aremu v. Sinaba (2014) NWLR (Pt. 1408) 63 AT 43 where it was said that “any attempt to detect the named signatory will amount to converting the Court into a forensic laboratory.”
Learned counsel for the appellant next drew our attention to the affidavit in support of respondent’s motion for summary judgment deposed to by one Olakunle Fapohunda, a legal practitioner in the law firm of Dawes & Vista Solicitors but that the said lawyer did not affix his stamp and seal to the affidavit as required by Rule 10(1) of the RPC earlier reproduced. Mr. Amodu submitted that it is no answer that Mr. Fapohunda in deposing to the affidavit was not acting in his capacity as a legal practitioner and so not required to affix his stamp. Counsel referred us to paragraph 1 of the said affidavit where Mr. Fapohunda swore that he is a legal practitioner and a partner in the law firm of Dawes & Vista Solicitors, the firm engaged to provide legal representation in the present suit and by virtue of that he is conversant with the facts deposed herein. That deposition, counsel submitted, shows that Mr. Fapohunda, by his own admission, was clearly performing a function as a legal practitioner and partner in the law firm while deposing to the affidavit and therefore expected to affix his stamp and seal. His failure to so do, counsel argued, means, by Rule 10(3) of the RPC that the shall be deemed not to have been properly signed or filed.
Counsel to Respondent who framed issue 1 to read whether or not the learned trial Judge had jurisdiction to hear and determine the motion for summary judgment started by dismissing the entire argument of the appellant as a play with dry technicality which the Courts of this country have always stated that they are no longer interested in. They argued that the Courts are in the era of now substantial justice. They said that going by the decision of the Supreme Court in Okpe v. Fan Milk Plc (2017) 2 NWLR (Pt.1549) 282 AT 312 (SC) processes, the requirements of the law regarding how processes are to be signed were met in by respondent in its processes so they were competent. In any case, they further argued and cited the Supreme Court’s decision in Ogunpehin v. Nucleus Ventures (2019) LPELR-48772(SC) p.7-8, a process is competent and meets the requirements of Rule 10 of the Rules of Professional Conduct if signed by one counsel but bears the stamp of another counsel also indicated on the processes provided both lawyers are from the same law firm. It was further argued by counsel that in any case, failure to affix a lawyer’s stamp on a Court process does not render the processes null and void but only makes it improperly filed, and so capable of being regularized by a motion to that effect and extension of time to do that – in support of which counsel cited Yaki v. Bagudu (2015) 18 NWLR (Pt.1491) 288 AT 316 (SC).
As regards appellant’s attack of the affidavit in support of the application for summary judgment deposed to by Mr. Fapohunda, they argued that affidavit is evidence so where a lawyer deposes to it, he is merely acting as a witness and not a legal practitioner in the case. They said that nowhere in his said affidavit did Mr. Fapohunda claim to ‘appear’ as a Legal Practitioner and we should so hold. In any case, assuming that Mr. Fapohunda’s affidavit required lawyer’s stamp, counsel argued, its absence does not nullify the affidavit but only renders it irregular, which can be ‘cured’ in the Court’s pursuit for substantial justice over technical justice. Counsel concluded by urging us to resolve issue 1 against appellant.
Resolution of issue
The argument of appellant’s counsel on this issue seems to revolve around (1) the proper way of signing legal processes by legal practitioners; the (2) provisions of Rule 10 of the Rules of Professional Conduct of Lawyers requiring legal practitioners to affix their stamp and seal to legal documents, which includes affidavits, depositions and applications, signed by them to make them valid, and (3) the effect of non-compliance with the said requirements. Starting first with Rule 10 of the Rules of Professional Conduct for Legal Practitioners 2007, that Rule reads thus:
10(1) A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Government department or Ministry or any corporation, shall not sign or file a legal document unless there is affixed on such document a seal and stamp approved by the Nigerian Bar Association.
(2) For the purpose of this rule, legal document shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents.
(3) If without complying with the requirement of this rule, a lawyer signs any legal document as defined in sub-rule 1 of this rule in any of the capacities mentioned in sub-rule1, the document signed or filed shall be deemed not to have been properly signed or filed.
These provisions undoubtedly require that no legal practitioner shall sign any legal document, including affidavits, depositions and the kind of application in issue here unless he affixes on such document his NBA seal and stamp and that failure to so stamp it means that the document shall be deemed not to have been properly signed or filed. Case law on the provision has however gone on to state that a document signed or filed without compliance with Rule 10 above can be regularized and cured in a proceeding where that is still possible. See Senator Bello Sarkin Yaki v. Senator Atiku (2019) ALL FWLR (PT 810) 1026 AT 1054 Para E (S.C) where the Supreme Court held that:
“In the case at hand, the process filed in breach of Rule 10(1) can be saved and its signing and filing regularized by affixing the approved seal and stamp on it. It is a legal document improperly filed and the fixing of the seal and stamp would make the filing proper in law. Since this was not done, the Court cannot take cognizance of a document not properly filed and the filing not regularized.”
It is also further settled by the Supreme Court that a legal document filed in Court could properly bear the NBA stamp of one lawyer and the signature of another lawyer provided both lawyers work in the same law firm and their names all appear in the document. That is the decision in Ogunpehin v. Nucleus Ventures (2019) LPELR-48772(SC) p.7-8.
Leaving the requirements of Rule 10 of the Rules of Professional Conduct for Legal Practitioners and coming to how legal documents should be signed by lawyers, it has been also settled that for legal documents to be competent they must be signed as follows:
1. The signature of counsel which may be in any contraption.
2. The name of counsel clearly written.
3. Who counsel represents.
4. Name and address of legal firm.
See SLB Consortium Ltd v. NNPC (2011) 9 NWLR (t. 1252) 317 AT 336-337; Dr. Raji v. University of llorin (2018) LPELR-44629 (SC); GTB Plc v. Innoson Nigeria Ltd (2017) 16 NWLR (PT 1591) 181 AT 198-199; llukwe v. Okeke (2017) ALL FWLR (Pt. 900) 537 AT 560. All these cases also emphasize the point that failure to disclose the lawyer who signed a legal process is not a mere irregularity but a fundamental error and renders the process void.
Applying the above decisions first to the motion on notice for summary judgment contained at pages 1-3 of the records of appeal, one will see that it has the Nigeria Bar Association stamp of one Usaini Tudunwada Umar affixed to it. The name of the same Usaini Tudunwada Umar Esq. also appears as the third name after the names of two other lawyers, Ayodeji Arowolo Esq. and Idris Sani Esq. in that order. Unfortunately, the signature therein contained and appearing beside the NBA stamp is undecipherable signature and there is nothing on the face of the process to indicate who owns it, thereby making it impossible to link it to anybody. In a similar situation in GTB Plc v. Innoson Nigeria Ltd (2017) 16 NWLR (PT 1591) 181 AT 198-199 the Supreme Court (Ejembi Eko, JSC – with his brothers Dattijo Mohammad. Ogunbiyi, Kekere-Ekun, and Bage, JJ.S.C.), had this to say:
The processes had on them at the signature column a signature that cannot be ascribed to any of the four persons, including the names of Prof. J.N.M. Madugha, FOILS, FCAA; Dr, N.J. Maduike-Ekwe, Ph.D;
E.C. Ofime. Esq., LL.B and C. Dimazoro-Okeke (Mrs.) LL.M who apparently are legal practitioners. The same scenario was repeated on the written address filed on 21st June 2016 along with the further counter-affidavit No.2 – filed on the same date. Relying on SLB Consortium v. NNPC (2011) 9 NWLR (Pt.1252) 317 at 336 -337. Mr. Olorundare, SAN, of counsel to the appellant had strongly urged that the said process are incompetent and should be struck out.
“It is trite that it is the seal or signature of the author on a document that authenticates the document. A legal document or process of Court must be settled or signed by either the legal practitioner of the choice of litigant or the litigant himself.
“The disputed processes were purportedly settled or signed by a legal practitioner whose identity is unknown. Where ex facie a Court process it is uncertain if the process was signed by the litigant or the legal practitioner representing him, the process is incompetent. Court processes must either be signed by the litigant himself or by the legal practitioner retained by him. A Court process that purports to be settled by a legal practitioner must, as a requirement of statute, have not only the signature of the legal practitioner but also his name clearly shown and indicating that the signature is his. The decision of this Court in SLB Consortium Ltd. v. NNPC (supra) and many others on Court processes prepared and filed by a legal practitioner clearly demonstrate that for the signature thereon appended to be valid, it must be traceable to a legal practitioner.
The process must have the signature or mark of the legal practitioner either against his name, or over and above his name.
“The written addresses filed on 6th April, 2016 and 21st June, 2016 are clearly incompetent. The signature on each of them cannot be verified or traced to any registered legal practitioner. They are accordingly struck out.” That same result must necessarily befall this one, too. The decision in Ogunpehin v. Nucleus Venture (2019) LPELR- 48772(SC) p.7-8 relied on by respondent cannot help it, because in Ogunpehin it was clear, and so stated in the case, that the different lawyer who signed the process was one Timothy O. Adewale. His name also appeared in the appellant’s brief in issue alongside that of his colleague, Oladosu Ogunniyi, whose stamp was affixed to the brief. Where the name of the lawyer that signed a process is clear on the process in the sense that his name is ticked or stated by some other means on the process, or his name can be easily deciphered from his mark on the process as it was said to be in Williams v. Adold/Stamm International (Nig.) Ltd (2017) 6 NWLR (PT 1560) 1 @ 19-20 (SC) where the name of Late Chief Ladi Williams SAN who signed the process was clear from his mark/contraption on it even without a tick, it would suffice as that lawyer’s signature. That is not the case here so I have not option than to agree with appellant’s counsel that the said motion for summary judgment the grant of which culminated in this appeal was incompetent and invalid and cannot be the basis of any order of that Court.
That should ordinarily settle this and end the inquiry as the incompetence of the application affects everything attached to it including the affidavit supporting it. Let me nevertheless consider the arguments made against that affidavit deposed to by Olakunle Fapohunda of counsel. While Mr. Amodu for Appellant argues that the said affidavit ought to bear Mr. Faphunda’s NBA stamp to be valid in line with Rule 10 of the Rules of Professional Conduct for lawyers, Mr. Sani Idris for respondent argues that the said affidavit of Mr. Fapohunda is merely evidence of witness albeit of lawyer so Rule 10 of the Rules of Professional Conduct for lawyers would not apply to him. He maintained that Mr. Fapohunda never appeared at all as counsel in the proceedings at the lower Court. I have had cause in the past to speak on this issue of counsel deposing to affidavit in a proceeding whether counsel need to comply with Rule 10 of the Rules of Professional Conduct for lawyers by affixing his stamp and duty to his written deposition of affidavit once he swears to an affidavit. That was in Appeal No: CA/MK/111/2011: Ado Local Government Council & 22 Others v. Fidelitty Bank Plc v. AONDOHERMBA AGBA INJO of 11th September 2020. There, I said as follows:
“It is beyond dispute that a deponent to an affidavit by whatever name called is ordinarily a witness in the matter in which he made his deposition (see Jimoh v. Minister of Federal Capital Territory (2019) 5 NWLR (PT 1664) 45 @ 64 para H (Eko, J.S.C), it cannot therefore be correctly said that such a witness, because he happens to be a legal practitioner, is expected to affix his professional stamp and seal to his deposition even if his deposition has nothing to do with his core professional calling or activities as a legal practitioner. In fact this argument of Mr. Usha necessarily suggests that even a lawyer who only wishes to depose to an affidavit to be frontloaded in support of his family’s land litigation will have to affix his legal Practitioner’s stamp and seal otherwise his deposition will be unacceptable. That is an absurd interpretation of Rule 10 of the Legal Practitioners Rules of Professional Conduct whose main purpose is to weed out the menace of fake lawyers from engaging in legal practice. The law does not accept absurd interpretations of statutes or instruments.”
I still maintain that position. An affidavit deposed to by a lawyer in a proceeding in Court is ordinarily evidenced in the case (see Jimoh v. Minister of Federal Capital Territory (2019) 5 NWLR (PT 1664) 45 @ 64 para H ) and so may not by the mere fact of such deponent being a lawyer make the Rule 10 of the Rules of professional conduct for lawyers applicable to it. And that is so even if the said lawyer deponent swears to the affidavit in the course of his employment as counsel. It is only if such deposition of affidavit has to do with, or flirts with, the lawyer’s core professional calling as a lawyer that he would be required to affix his stamp to it to prove that he is the lawyer that he claims there. A lawyer, like any other person, cannot be denied his right of testifying as a witness in a case, which is what an affidavit filed in a Court proceeding is meant to be, so long as his deposition does not have anything to do with his core calling and functions as a lawyer. Unfortunately that – performing his functions and calling as a lawyer – is exactly where Mr. Olukunle Fapohunda is caught, for in paragraph 14 of his affidavit Mr. Fapohunda showed without any doubt that he was not simply acting as an ordinary witness but as a lawyer, too, when he deposed there that:
14. That by virtue of my legal training, I know as a fact that the Plaintiff is entitled to post-judgment interest of not less than 10% and this Honourable Court has the vires to grant the Plaintiff’s prayer as claimed. (Italics mine).
For Mr. Fapohunda to rely on and flaunt his training as a lawyer in that manner in his affidavit he must first prove that he is really the lawyer that he claims to be. That he can only do by affixing his Nigerian Bar Association stamp to his affidavit as required by Rule 10(1) of the Rules of Professional Conduct for Lawyers. In the absence of that stamp on his affidavit, Rule 10(3) of the same Rules of Professional Conduct for Lawyers will come into play and his said affidavit, in the words of that rule, will be ‘deemed not to have been properly signed or filed.’ That means, in effect that, respondent’s motion for summary judgment, even assuming that it was competent, which it is not, would have no facts to support it and so not grantable at all.
The summary of all the forgoing is that, issue 1 of the appellant is meritorious and is hereby resolved in its favour.
Issue 2: Assuming that I am wrong in that conclusion, I now proceed to issue 2 relating to the merits of the partial summary judgment that the lower Court entered for respondents against the appellant. Appellant here submitted that what calls for determination under this issue is whether or not its counter affidavit in opposition of the motion for summary judgment disclosed sufficient facts which entitled the appellant to defend the action. In opposition to the respondent’s averments in the affidavit in support of the motion for summary judgment, the appellant, counsel pointed out, filed a counter affidavit and raised therein several issues which would entitle it to a full trial as they are issues that cannot be determined under the summary judgment procedure; that under the summary judgment procedure, once the Defendant is able to show that he has a fair case for defence or a reasonable ground for setting up a defence or even a fair probability that he has a defence, he ought to be given leave to defend as all that a Defendant is expected to show under the summary judgment procedure is a prima facie defence and not a defence on the merit. Counsel argued that paragraph 3(e) to G) of its counter affidavit made a clear case showing that it was Respondent that was in breach of the contract to supply the products timeously, which made respondent impossible to meet up with the demands of its own customers who it was supposed to use the raw materials to manufacture products for; that in effect, respondent caused the alleged breach of appellant and made it impossible for it to perform it’s term of the contract regarding payment for the goods supplied; that was a good defence which the trial Judge ought to have allowed appellant to put up by giving it leave to defend the action.
Mr. Sani Idris for respondent on his part submitted that the lower Court properly evaluated the evidence adduced before it in arriving at its judgment and so cannot be faulted.
Resolution of issue
Now, this is the way the trial Judge reasoned in entering partial summary judgment for appellant.
“Now, the object of the summary trial procedure is as counsel to the defendants rightly stated to determine expeditiously a plaintiff’s claim by entering summary judgment where the defendant clearly has no legal defence to the action and to avoid a situation where the defendant who has no prima facie defence would delay and frustrate the plaintiff’s claim, see Dala Air Services Ltd. v. Sudan Airways Ltd. (2005) 3 NWLR pt. 912 394 at 687. The defendant need not show a complete defence or one that will succeed all he needs to show to get the matter transferred to the general cause list is the existence of a triable issue that is neither speculative nor a sham but one that when established would defeat the claim of the plaintiff.
“In the instant case, the defendants counter affidavit as well as joint statement of defence deposed to issues that bother on the plaintiff’s late supply of the product, the high exchange rate of the dollar as opposed to the time when the transaction was entered into, the agreement to go for arbitration first as well as the challenge of the figure. Nowhere in the counter affidavit or statement of defence did the defendants deny the indebtedness. In fact, the plaintiff/applicant had shown the admission by the 1st defendant of the debt and the steps taken to liquidate same by making the payment stated in paragraph 10(d) of the affidavit in support and the offer to mortgage the defendant’s property which Exhibit 9 attached to the applicant’s affidavit. The 1st defendant has not countered the averment in paragraph 10(a) of the value of the total supply made and paragraph 1 (d) of the amount so far paid. The averments in the counter affidavit of the plaintiff not reflecting the correct payment made is speculative and vague as it did not disclose the exact payment(s) made for which the plaintiff failed to consider.
“The first defendants had stated in paragraph 3(o) that it was sent copies of invoice and statement of the 1st defendant by the plaintiff which she signed without checking the figures and later discovered that some payment were not considered. The 1st defendant failed in stating which payment was not considered adducing evidence of such payment. In the case of Thor Ltd. v. First City Merchant Bank Plc. (supra) the Supreme Court held at page 231 ratio 6 that the defendant’s affidavit must condescend on particulars and should state precisely and clearly what the defence is and should state if the defence goes to the whole or part of the claim. Now in the instant case, if the 1st defendant wants this Court to hold that a prima facie defence is disclosed it should as it ought to provide details of the payments made that were allegedly left out in the 1st defendant’s statement sent to her by the plaintiff, which she signed.
“To State as she did that the figures were not cross-checked before signing is indeed a very lame excuse one that cannot afford the 1st defendant a prima facie defence. The whole deposition in the 1st defendant’s counter affidavit has failed to satisfactorily rebut the plaintiff’s claim and in such situation, the Court is duty bound to enter judgment for the plaintiff. As the procedure for summary judgment has to prevail over what is considered a ‘sham’ defence, one that is contrived only to keep the plaintiff from a proven right. General Oil Ltd. v. FSB. Inter Bank Plc. (supra) at 1009-1010.
“The issue of the parity in exchange rate raised by the counsel to the 1st defendant is not an issue that throws doubt on the plaintiff’s claim or one that requires the plaintiff to give explanation on certain matters with regards to the claim. It therefore does not fall within what is defined as a triable issue. Since the payment and price was agreed by the parties at the time of the transaction, the big disparity in the rate of exchange cannot defeat the plaintiff’s claim since parties are bound by their agreement and if the 1st defendant had paid for the product supplied to her when they should this would not have arisen. Parties to a contract are bound by the terms of their agreement. General Oil Ltd. v. FSB. Inter. Bank Plc. (supra) at 1009 ratios 2 &3 2
“From the affidavit and documentary evidence before me, I am unable to find that the 1st defendant had disclosed a prima facie defence that warrants the transfer of the suit as a whole to the general cause list.
“In regard to the plaintiff’s first claim which is for the sum of US$1,393,220 the CBN approved equivalent applicable at the time of judgment, in view of deposition in paragraph 10(a) of the affidavit in support that this sum represents the total worth of products supplied to the 1st defendant and the deposition in paragraph 10(d) that the 1st defendant paid only US$66.549.99 the plaintiff cannot be entitled to his first claim. He is only entitled to a sum after the above sum of Us$66,549.99 is deducted. Thus judgment is entered for the plaintiff in respect of the first claim less the sum of US$66.549.99
“The 3rd claim for post-judgment interest of 10% per annum from the date of judgment until date of liquidation of the money is also one that can be granted in a summary judgment procedure as it is provided in our Rules of Court and it thus succeeds. The claim for cost of filing the suit is also granted.
“However the plaintiff’s second claim for the sum of US$778,890.04 as accumulated interest charges that accrued on the overdue invoices is one that cannot as counsel to the 1st defendant submitted be granted by way of summary judgment.
“It is correct that there was no agreement between the parties on the payment of interest on the sum due. And as also rightly stated by counsel to the 1st defendant the transaction is not one which by custom and practice provides for interest to be charged. The plaintiff is not a financial institution.
“Pre-judgment interest is an unliquidated money demand unless it is one that was agreed by the parties at the time of the transaction or within their contemplation.
“Thus this head of claim is transferred to the general cause list.”
Save for the virus afflicting the respondent’s application as earlier shown, I would have had no difficulty upholding this decision of the lower Court and resolve this issue in favour of the respondent, for it, in my opinion, reflects the position of the law and the justice of the case.
Having resolved jurisdictional issue 1 in favour of the appellant, however, this appeal succeeds and is allowed and the interlocutory decision of the High Court of Kano State of 9th June 2017 in Suit No K/543/2016 entering partial summary judgment for respondent against appellant hereby set aside, with a further order that respondent’s incompetent application for summary judgment before the High Court of Kano State along with its accompanying affidavit be and are hereby struck out from that Court.
Respondent is however at liberty to file a competent application for summary judgment before that same Court.
Parties shall bear their costs.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the ruling delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA and I am in complete agreement with the reasoning and conclusion reached that the appeal is meritorious. I too allow the appeal and set aside the interlocutory decision of the trial Court in Suit No. K/543/2016 and abide by all other consequential orders as contained in the lead judgment.
USMAN ALHAJI MUSALE, J.C.A.: My learned brother BOLOUKUROMO MOSES UGO, JCA obliged me with a draft of the leading judgment delivered in this appeal. I entirely agree with the judgment and the way the issues were treated by My Lord. I have nothing more to add. I abide by the conclusion reached therein.
Appearances:
Kayode Amodu, Esq, For Appellant(s)
Sani Idris, Esq, For Respondent(s)
