UNITED BANK FOR AFRICA PLC v. CHIEF ANTHONY AJIBOLA ARIBISALA, SAN
(2016)LCN/8301(CA)
In The Court of Appeal of Nigeria
On Monday, the 14th day of March, 2016
CA/L/701/2012
RATIO
PRACTICE AND PROCEDURE: SUMMARY JUDGEMENT; WHAT IS A SUMMARY JUDGEMENT
However, a summary judgment is a procedure for disposing with dispatch, cases which are virtually uncontested. It also applies to cases where there can be no reasonable doubt that a Plaintiff is entitled to judgment and where it is inexpedient to allow a Defendant to defend for more purpose of delay. It is for the plain and straight forward, not for the devious and crafty “per Mohammed JSC in UBA vs Jargaba (2007) LPELR 399. per. UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
UNITED BANK FOR AFRICA PLC – Appellant(s)
AND
CHIEF ANTHONY AJIBOLA ARIBISALA, SAN – Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State delivered on the 28th day of March, 2012 by Hon. Justice
L. B. Lawal-Akapo.
The facts briefly stated are as follows:
By a letter dated the 16th day of October, 2009, the Respondent entered into a debt recovery agreement with the Appellant wherein, the Appellant engaged the services of the Respondent to recover debts owed by some of the Appellant’s defaulting customers. It is important at this stage to reproduce the said letter or otherwise the terms of the agreement thus:
“4.12 RE: BRIEFS TO RECOVER FUNDS ON SOME ACCOUNTS
We refer to your letter of October 8, 2009 on the above subject.
Please be advised that we have carefully reviewed your position on the accounts and have consequently decided to:
(i) Increase the professional fees to 7% of actual recovery.
(ii) Give you the authority to take the matter to Court and get them determined within six months from October 23, 2009…”
It is the case of the Respondent that pursuant to the said letter/agreement, he
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made frantic efforts to recover the money owed to the Appellant by its debtors [by writing letters, holding meetings and instituting several actions in Courts against the Appellant’s debtors). He also alleged that while he was in the process of recovering the debts, the Appellant sold off the subject matter of the agreement to Asset Management Corporation of Nigeria (AMCON) without its approval and without payment of his fees. Hence he commenced this action at the Lower Court via a writ of summon dated the 22nd day of December, 2011, wherein, he claimed as follows:-
a. The sum of N67,907,648.44 (Sixty One Million, Nine Hundred and Seven Thousand, Six Hundred and Forty Eight Naira, Forty Four Kobo) being the professional fees for the legal services rendered by the Claimant at the request of the Defendant in respect of four accounts to wit SMADAC SECURITIES LTD. ICMG SECURITIES LTD, TRUST YIELD SECURITIES LTD, EUROCONINI SECURITIES LTD. And ALHAII ADAMU MU’AZU the details of which are as pleaded in the Statement of Claim.
b. Interest on the said sum of N61,907,648.44 at the rate of 21% per annum till judgment is delivered and thereafter at the
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rate of 18% per annum till judgment sum is liquidated.
c. The sum of N2, 450, 000.00 (Two Million Four Hundred and Fifty Thousand Naira) being reimbursable expenses incurred by the Claimant in carrying out the instructions of the Defendant.
d. Interest on the said sum of N2,450,000,00 (Two Million Four Hundred and Fifty Thousand Naira) at the rated of 18% per annum till judgment is delivered and thereafter at the rate of 18% per annum till judgment is liquidated.
e. Cost of this action accessed at N5,000,000.00 (Five Million Naira).
During the same period he also filed a motion for summary judgment. See page 220 to 446 of the Record of Appeal.
?The Appellant (the Defendant at the Lower Court) upon being served with the Respondent’s originating processes entered a conditional appearance and filed its Statement of Defence alongside a counter affidavit and written address in opposition to the application for summary judgment. In his defence, the Appellant stated that, based on the agreement the Respondent was only entitled to a percentage of monies actually recovered by him and having not recovered any money he was thus not entitled to any
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payment. He also raised and relied on the defence of frustration and lapse of time.
The motion for summary judgment was therefore heard. In delivering its judgment the learned trial judge held that the defences raised by the Appellant are not real defences but an attempt to technically avoid the issue of the Defendant’s/Appellant’s indebtedness based on the contract and then entered judgment in favour of the Respondent.
Dissatisfied with the said judgment, the Appellant filed a Notice of Appeal on 25th day of June, 2012 consisting of 2 grounds of appeal.
In accordance with the Rules of Court parties have filed their respective brief of arguments. They are as follows:
1. The Appellant’s brief of argument was filed on the 21st day of December, 2012.
2. The Respondent’s brief was filed on the 6th day of February, 2015,
3. The Appellant’s Reply brief was filed on the 16th day of June, 2015 and deemed properly filed & served on the 25th day of January, 2016.
The Appellant in its brief of argument formulated a sole issue for determination viz:-
“2.1.1 Whether this Honourable Court is empowered to set aside the
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judgment delivered on the 22nd of June, 2012 by the trial Court on the grounds that the learned trial judge failed to exercise his discretion judicially and judiciously in entering judgment in favour of the Respondent under Order 11, Rules 1, 4, 5 and 6 of the High Court of Lagos State (Civil Procedure) Rules, 2004 when there was clearly triable issues raised from the Appellant’s Statement of Defence”
The Respondent on the other hand also formulated a sole issue for determination viz:
“3.01 Whether the trial Court exercise its discretion judicially and judiciously in granting the Respondent’s Motion for Summary Judgment under Order 11 of the High Court of Lagos State (Civil Procedure) Rules, 2004, having regard to the sham defence of the Appellant to the Respondent’s claims at the loser Court.
ARGUMENT
It is the contention of learned counsel for the Appellant that the trial Court was wrong in entering summary judgment. According to counsel for the Appellant, the Appellant as defendant by its Statement of Defence and Counter affidavit to the application for Summary judgment had demonstrated triable defence. Such triable defence
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include:
1. The fact that the agreement between the parties only stipulated payment of 7% of actual recoveries and to that extend the Respondent is not entitled to the amount claimed as there was no actual recovery by him.
2. The second defence is the fact that as at the time AMCON took over the debt in question there was no subsisting agreement between the Appellant and the Respondent” As the contract between the parties have lapsed by effluxion of time due to non-performance by the Respondent within the time stipulated in the contract.
3. The third defence is that the debt recovery contract between the parties in this suit has been frustrated in law by the appointment of AMCON to take over the loan contemplated by the agreement.
It is thus the contention of Counsel for the Appellant that in view of the above stated defences, the learned trial judge ought to have exercised its discretion in favour of the Appellant by allowing the case to go to trial on the merit. Having not done so this Court is entitled to interfere with the exercise of discretion by the Lower Court and set aside the judgment so as to enable the parties prove their case
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on the merit at the trial Court. He relied on the case of NNUBIA V ATTORNEY GENERAL, RIVERS STATE (199) 3 NWLR (Pt.593) 82; HABIB NIGERIA BANK LTD V EMMANUEL O. A. OYEBANJI (1998) 13 NWLR (Pt.580) 71.
On the other hand, counsel for the Respondent submitted that the trial Court was right to have granted summary judgment as the Appellant had failed to show triable defence. According to him each of the defences put forward by the Appellant is a sham as rightly found by the trial Judge. He went further to show how each of the defences raised by the Appellant did not avail the Appellant.
On the defence of frustration, counsel submitted that this defence will not avail the Appellant as it was the Appellant who voluntarily and deliberately brought about the supervening event when it sold the debt portfolio to AMCON without regard to its extant contract with the Respondent. He relied on the following cases N.B.C.I. v. STANDARD (NIG) ENG CO. LTD (2002) 8 NWLR (PT.768) 104; MAZIN ENG LTD V. TOWER ALUMINIUM (1993) 5 NWLR (PT.295) 526; TOTAL (NIG) PLC V. AKINPELU (2004) 17 NWLR (PT.903) 509; AG RIVERS STATE v. AG AKWA IBOM STATE (2011) 8 NWLR (PT.1248) 31.
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On the defence of lapse of time, counsel submitted that this defence too will not avail the Appellant as the stipulated time frame was not a condition precedent for the payment of Respondent’s fees and even if that was the case, it cannot on its own automatically terminate the contract. He relied on the case of N.P.A. v. A.I. Co. (2010) 3 NWLR (PT.1182) 487 @ 499, He also submitted that the Appellant having acquiesced to the execution of the contract beyond the 6 month’s mandated stipulated in the contract cannot be seen complaining at this stage that there was no valid contract as same has been determined by effluxion of time. Counsel went further to give various acts of acquiescence by the Appellant as follows:
“4.43
i. Appellant’s letter to the Respondent dated 19th April, 2010 requesting the Respondent to prepare and file terms of settlement in Court in respect of the indebtedness of ICMG Securities presupposes the Respondent will execute such instruction beyond 22nd April, 2010. The said letter can be found on pages 148 and 471 of the Record of Appeal.
ii. The Respondent’s reply letter to the aforesaid Appellant’s letter dated 27th April,
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2010, confirming the execution of the Appellant’s instructions as contained above. The said letter clearly falls outside the 6 months envisaged by the Appellant.
iii. The Appellant’s letter to the Respondent dated 28th, April, 2010, instructing the Respondent to prepare, execute and file Terms of Settlement in Court in respect of the indebtedness of Trust Yield Securities Ltd.
iv. The Respondent’s letter to the Appellant dated 3rd June, 2010, confirming execution of the latter’s instructions as above,
v. Several Court appearances by the Respondents on behalf of the Appellant in the suits instituted on its behalf which fell outside the 6 months period, which also formed part of the Respondent’s pleadings at the Lower Court and which were not denied by the Appellant,”
Finally on the defence of non-recovery, Counsel submitted that based on the terms of contract the Respondent was entitled to 7% of all monies recovered by the Appellant irrespective of the manner of recovery.
In his reply, Counsel for the Appellant submitted that at this stage all that the Defendant is required to show under Order 11 of the High Court of Lagos State [Civil
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Procedure] Rules, 2004 are facts which if proved will constitute a defence in law. The Appellant is not required at this stage to establish the facts put forward by him (Appellant). According to the Appellant the facts put forward are sufficient or constitute triable issues in defence. He reiterated the fact that the frustration is foisted on it by directive of CBN and the statutory performance of the Rules of AMCON. He reiterates that the agreement was clearly based on actual recovery to be made by Respondent and not just any recovery as contended by the Respondent. Counsel urged the Court to allow this appeal.
The Respondent as claimant claimed against the Appellant as Defendant. Both parties entered a contract which was reduced in writing. The contract terms was recapped earlier in the judgment.
The most important paragraphs in the said letter that embodied the contract are as follows:
(i) Increase the professional fees to 7% of actual recovery,
(ii) Give you the authority to take the matter to Court and get them determined within six months from October 23, 2009…..”
?The parties from the foregoing agreed that the professional fees will
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be 7% of actual recovery. There is also a time frame for the recovery of the debts which was put at 6 months from 23rd October, 2009.
The Respondent as claimant came by a writ of summons and also filed a motion for a summary judgment. The Appellant filed its statement of defence and counter affidavit. The job of the trial judge is to rule on whether, the Defendant had put in a defence worthy of consideration. The Defendant/Appellant at this stage is not expected to prove his defence.
To earn a 7% of the debt recovered, the debt must first and foremost be collected. The collection of the debt recovered becomes a condition precedent to the earning of the 7% professional fee agreed by the parties. The question to be asked is: whether the Respondent recovered any debt from any of the debtors?
Therefore, can the Respondent claim any professional fee of 7% as agreed by the parties?
The Respondent made a list of the various sums AMCON recovered and paid to the Appellant. Can the Respondent honestly claim the 7% professional fees on these sums recovered by AMCON?
The Appellant had argued that the Respondent was not entitled to the 7%
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professional fee as it had not recovered any sums.
The Appellant had also claimed that the contract between the parties was frustrated by a government policy i.e the enactment and establishment of AMCON to buy off non-performing loans and bad debts.
The Appellant also put up a defence of the time frame of the contract which elapsed after 6 months.
These defences are the ones put up by the Appellant. In U.N.N. vs Orazulike Trading Co. (1989) 5 NWLR Pt.119 pg 29 Uwaifo JCA as he then was interpreted the rule of defence on the merit as follows:
“The law is that where the Defendant raises any substantial question of fact which ought to be tried, leave should be given”
Kawu JSC in Okambah Ltd vs Alhaji Ganiyu A Sule (1990) LPELR 2422 held.
“In determining whether a Defendant has good defence to the action or has disclosed such facts as may be deemed sufficient, to entitle him to defend, it is not necessary for the trial Judge to decide at that stage whether the defence has been established. What is required is simply to look at the facts deposed to in the counter affidavit or indeed the facts averred in the statement of defence, where
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applicable and see if they can prima facie afford a defence to the action “F.M.G. vs Sani (1990) 4 NWLR Pt.14 pg.688 (1990) 7 SCNJ, Pg.161.
The Appellant had stated in its statement of defence that, the Respondent had not collected any sum from the debtors. Appellant also averred that the contract was frustrated by the setting up of AMCON to buy off all bad loans from the Appellant and other banks. The Appellant also stated that the contract had been determined by effluxion of time.
To my mind these are triable issues which ought to be investigated. All the Appellant need do at this stage is to put up a defence which would be looked at. At this stage, the Appellant is not entitled to prove his defence but to raise a defence bonafide. Okambah Ltd vs Alhaji Ganiyu Sule(supra)
The Respondent had applied for summary judgment and was granted.
However, a summary judgment is a procedure for disposing with dispatch, cases which are virtually uncontested. It also applies to cases where there can be no reasonable doubt that a Plaintiff is entitled to judgment and where it is inexpedient to allow a Defendant to defend for more purpose of delay. It is
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for the plain and straight forward, not for the devious and crafty “per Mohammed JSC in UBA vs Jargaba (2007) LPELR 399.
In the instant case, the amount the Respondent is claiming needs to be explained as he did not recover any actual debt to extract 7% for his professional fees. This alone needs further explanation.
The matter of frustration alleged by the Appellant needed to be addressed as AMCON is an intervening factor in this contract of debt recovery by the parties.
After the effluxion of time does the Respondent have any more mandate to continue outside the terms of the contract. These issues needed to be trashed out. This therefore means that the Appellant has raised a prima facie defence that needs to be addressed. This can only be achieved by calling evidence in the general cause list.
The Appellant in their statement of defence has disclosed enough facts to satisfy a reasonable tribunal that the Defendant has a defence to the action.
Such a fact must be one that will require the plaintiff to proffer explanation for certain matters with regard to his claim on which seriously questions the Plaintiff’s claim. Such a defence
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must not be a sham, frivolous, vague or fanciful or designed to delay the trial of the action, It must show that there is a dispute between the contending parties to be tried” per Mohammed JSC in UBA vs Jargaba (supra)
From the statement of claim and the statement of defence, there are triable issues begging to be resolved. I will not go further into the merits and demerits of this case so as not to jeopardize the dispassionate trial of this case.
This case deserved to be sent to the general cause list for trial. This appeal is meritorious and therefore allowed. This suit is remitted to the Chief fudge Lagos State to assign to another Coram for trial in the general cause list.
I make no orders as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in print the judgment written by my learned brother, Uzo I. Ndukwe-Anyanwu, J.C.A., with which I agree with nothing extra to add.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the advantage of reading in draft, the lead judgment just delivered by my learned Brother U. I. Ndukwe-Anyanwu and I agree with her reasoning and
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conclusion and adopt same as mine.
Accordingly, I also hold that this Appeal is meritorious and it is hereby allowed.
?I abide by the consequential Orders in the lead judgment including that as to costs.
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Appearances
Oyeniyi Sodimu, N. C. OmekeFor Appellant
AND
Chief A. A. Aribisala (SAN) S. Jegede,Esq. A. Okesola Esq, I. Aribisala (Miss)For Respondent
