UNITED BANK FOR AFRICA PLC v. KASAPREKO NIGERIA COMPANY LIMITED & ANOR
(2019)LCN/13338(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of May, 2019
CA/L/1403/2017
RATIO
SUMMARY JUDGMENT : WILL BE GRANTED IF THE DEFENDANT FAILS TO SHOW OR DISCLOSE THAT HE HAS A GOOD DEFENCE
The law is trite that the Summary Judgment Application, when made by a Plaintiff who believes that the Defendant has no defence to his claims will be granted if the said Defendant fails to show or disclose that he has a good defence to the action or disclose sufficient facts to entitle him to defend the action. See the decision of the Supreme Court of Nigeria in U.T.C (NIG) LTD Vs. CHIEF J.P. PAMOTEI & ORS [1989] 2 NWLR (Pt. 103) 244; (1989) LPELR-3276 (SC) Pg. 59, Paras. A – B; OBITUDE Vs. ONYESOM COMMUNITY BANK LTD (2014) LPELR-22693 (SC) Pg. 50-51, Paras. C – D; Pg. 35, Paras. B – D where my law Lord, PETER-ODILI, JSC held that a Defendant in an application for Summary Judgment must establish that he has a good defence by showing or disclosing in his statement of defence and counter affidavit such triable issues to entitle him to be granted leave to defend the action.PER TIJJANI ABUBAKAR, J.C.A.
COUNTER-CLAIM: NATURE
In OGBONNA Vs. A.G., IMO STATE [1992] 1 NWLR (Pt. 220) 647; (1992) LPELR-2287 (SC) Pg. 33, Paras. B ? D, the Supreme Court of Nigeria per NNAEMEKA-AGU, JSC clearly held as follows: a counter-claim is to all intents and purposes a separate action, although the defendant, for convenience and speed, usually joins it with his defence where a Court so grants leave. Indeed, not only can a defendant apply for summary judgment on his counter-claim but also a plaintiff may counter-claim on defendants counter-claim. See also USMAN Vs. GARKE [2003] 14 NWLR (Pt. 840) 261; (2003) LPELR-3431 (SC) Pg. 22, Paras. A – B and OGUNDANA Vs. FBN & ANOR (2018) LPELR-45315 (CA) Pg. 33-39, Paras. E A.PER TIJJANI ABUBAKAR, J.C.A.
GUARANTOR: NATURE OF A BANK GUARANTEE
The nature of a Bank Guarantee cannot be overstated; it is a notorious fact that a guarantor is bound by the guarantee which he has made. This Court aptly stated this position in EKAETE Vs. UNION BANK OF NIGERIA PLC (2014) LPELR-23111 (CA) Pg. 43, Paras. F -G; see also DALA LOCAL GOVT. Vs. ACCESS BANK PLC & ANOR (2016) LPELR-40200 (CA) Pg. 20-21, Paras. E C and GAJIMI Vs. FBN PLC (2018) LPELR-43996 (CA) Pg. 18-19, Paras. D – E.PER TIJJANI ABUBAKAR, J.C.A.
RELIEFS: THE EFFECT OF A RELIEF BEING WITHDRAWN
It is trite that once a relief has been withdrawn, it automatically ceases to exist. See OSADIM Vs. TAWO (2009) LPELR-8209 (CA) Pg. 31, Paras. B – D and FORBY ENGR. CO. LTD & ANOR Vs. AMCON (2018) LPELR-43861 (CA) Pg. 56-57, Paras. A – D where this Court held that:
The Appellants Counsel has not referred to any rule of the trial Court, (because none exists) which says that a party cannot at any stage of the proceedings of a case, abandon or withdraw any of the reliefs sought in the originating processes, orally, irrespective of the nature of such reliefs; declaratory or executor.PER TIJJANI ABUBAKAR, J.C.A.
RELIEFS: A PARTY CAN ORALLY NOTIFY THE COURT OF HIS WITHDRAWAL OF HIS RELIEFS
It is absurd to say that a party cannot at any time in the course of the proceedings of his case, orally notify or inform the Court of his withdrawal or abandonment of any of the reliefs he sought from the Court against the Defendant(s) in the originating processes merely because the reliefs are declaratory.PER TIJJANI ABUBAKAR, J.C.A.
COUNTER-CLAIM: WHETHER COUNTER-CLAIM CAN BRING AN APPLICATION FOR SUMMARY JUDGMENT
In the same vein, it has earlier been stated herein that a counter-claimant can bring an application for Summary Judgment; See OGBONNA Vs. A.G., IMO STATE (Supra); USMAN Vs. GARKE (Supra) and OGUNDANA Vs. FBN & ANOR (Supra). PER TIJJANI ABUBAKAR, J.C.A.
SUMMARY JUDGMENT: NATURE
The very nature and essence of applications for Summary Judgment is that where and/or when a Plaintiff (or a Counter-Claimant as the case maybe) believes that the Defendant has no defence to his claims, he may file a Motion for Summary Judgment; and in such circumstance, the said Defendant has a duty to show or disclose that he has a good defence to the action or disclose sufficient facts to entitle him to defend the action. See the Supreme Court decisions in U.T.C (NIG) LTD Vs. CHIEF J.P. PAMOTEI & ORS (Supra); OBITUDE Vs. ONYESOM COMMUNITY BANK LTD (Supra).PER TIJJANI ABUBAKAR, J.C.A.
RELIEFS: THE COURT IS BOUND ONLY TO THE RELIEFS SOUGHT BY PARTIES
It is trite that the Courts will only be bound by the reliefs sought by a party before it. See GARUBA Vs. KWARA INVESTMENT COMPANY LTD & ORS [2005] 5 NWLR (Pt. 917) 160; (2005) LPELR-1310 (SC) Pg. 20, Paras. C – F; DIGA Vs. TONY (2013) LPELR-20768 (CA) Pg. 35-36, Paras. G A; SIMEON Vs. COLLEGE OF EUCATION, EKIADOLOR BENIN (2014) LPELR-23320 (CA) Pg. 28, Paras. C ? G and OZOMGBACHI Vs. AMADI & ORS (2018) LPELR-45152 (SC) Pg. 54, Paras. A -D where the Supreme Court restated that: ?It needs be reiterated that parties are bound by their pleadings and no party is allowed to make a case different from what it set out from inception.PER TIJJANI ABUBAKAR, J.C.A.
RELIEF: EFFECT OF A RELIEF NOT BEING MENTIONED IN A STATEMENT OF CLAIM
This position was clearly stated by the Supreme Court inA.G., FEDERATION Vs. A.G., ABIA STATE (No. 2) [2002] 6 NWLR (Pt. 764) 542; (2002) LPELR-632 (SC) Pg. 159, Paras. A – B where UWAIS, CJN (as he then was) held that: It is settled that where a relief is not mentioned in a Statement of Claim it will be deemed to have been abandoned..See also STOWE & ANOR Vs. BENSTOWE & ANOR (2012) LPELR-7838 (SC) Pg. 16, Paras. A – G; GARAN Vs. OLOMU (2013) LPELR-20340 (SC) Pg. 35, Paras. A – E’.PER TIJJANI ABUBAKAR, J.C.A.
RELIEFS: RELIEF STATED IN STATMENT OF CLAIM SUPERCEDES THAT CONTAINED IN THE WRIT OF SUMMONS
ZENITH BANK PLC Vs. IGBOKWE (2018) LPELR-44777 (CA) Pg. 39, Paras. B – D where this Court held that: It is settled that a plaintiff’s claim as settled in the statement of claim supercedes that in the writ of summons. Therefore, where there is a variation between the relief sought in the writ of summons and statement of claim, the latter will prevail.PER TIJJANI ABUBAKAR, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
UNITED BANK FOR AFRICA PLC – Appellant(s)
AND
1. KASAPREKO NIGERIA COMPANY LTD
2. JACKVINE (NIG) COMPANY LTD – Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Lagos State, in the Lagos Judicial Division, delivered by OYEKAN ABDULLAI, J. on the 15th day of June, 2017 in Suit No: LD/2643GCM/2016 which is contained at pages 328 – 337 of the Records of Appeal wherein the learned trial Judge entered Summary Judgment in favor of the 1st Respondent only in respect of the Bank Guarantee given by the Appellant on behalf of the 2nd Respondent in favor of the 1st Respondent. The suit was instituted by the 2nd Respondent via the Writ of Summons and Statement of Claim contained at pages 1 – 58 of the Records of Appeal. The 1st Respondent entered appearance and filed its Statement of Defence and Counter-Claim as contained at pages 62 68 of the Records of Appeal. The 1st Respondent (as 1st Defendant) also filed a Motion on Notice for Summary Judgment contained at pages 137 – 143 of the Records of Appeal; while the Written Address in support of the said motion is contained at pages 179 – 185 of the Records of Appeal. On the other hand, the 2nd Respondent (as
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Claimant) filed a Reply to the 1st Respondent?s Statement of Defence and a Defence to the Counter-Claim filed by the 1st Respondent which is contained at pages 210 ? 213 of the Records of Appeal. The 2nd Respondent also filed a Counter- Affidavit and Written Address in opposition to the 1st Respondent?s Application for Summary Judgment as contained at pages 216 ? 217 and 221 ? 224 of the Records of Appeal.
The Appellant herein (as 2nd Defendant) also filed a Counter-Affidavit and Written Address in opposition to the 1st Respondents Application for Summary Judgment as contained at 237 -243 of the Records of Appeal; The Appellant also filed a Statement of Defence to the 2nd Respondents suit and a Defence to the 1st Respondents (1st Defendant/Counter-Claimants) Counter-Claim; these are contained at pages 244 – 245 and 250 – 252 of the Records of Appeal respectively. The 1st Respondent thereafter filed a Further Written Address in support of its Application for Summary Judgment as contained at pages 272 – 275 of the Records of Appeal. On the 15th day of June, 2017, the learned
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trial Judge at the Court below heard the parties on the Motion for Summary Judgment and delivered Ruling on the same day. The Ruling allowed the Motion partly only with respect to the Bank Guarantee; and the lower Court thereafter adjourned for trial of the substantive suit.
The Appellant became nettled by the Ruling of the lower Court and filed a Notice of Appeal on the 29th day of June, 2017. The said Notice of Appeal is found at pages 338 ? 343 of the Records of Appeal and is founded on 3 (three) grounds of appeal. The Appellants Brief of Argument was filed by Azuatalam Esq. on the 6th day of March, 2018. The Appellant also filed a Reply Brief on the 7th day of June, 2018 it was deemed as properly filed and served on the 25th day of February, 2019. The 1st Respondent on the other hand filed its Brief of argument through learned Counsel Okoye Esq. on the 19th day of April, 2018. The issues nominated for determination by learned counsel for the Appellant are as follows:
1. Whether having regard to the averments in the statement of defence, the learned trial judge was right in entering summary judgment against the Appellant
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and in favour of the 1st Respondent. (Distilled from Ground 1).
2. Whether the lower Court was right to enter judgment in favour of the 1st Respondent against the Appellant without first determining the 1st Respondents entitlement to the declaration sought in Relief B of the Counter-Claim dated 15th November, 2016. (Distilled from Ground 2).
3. Whether the lower Court prejudged Relief 3 in the substantive suit by determining relief B in the Counter-claim at an interlocutory stage. (Distilled from Ground 3).
The Respondents counsel on the other hand formulated two issues for determination as follows:
1. Whether by the facts and circumstances of the entire suit, the 1st Respondent is entitled to summary judgment as given by the lower Court; and
2. Whether this appeal, by the argument of the Appellant, is meritorious.
SUBMISSIONS OF COUNSEL FOR THE APPELLANT
ISSUE ONE
Learned counsel for the Appellant referred to N.B.N LTD Vs. WEIDE & CO. NIG LTD [1996] 8 NWLR (Pt. 465) Pg. 150; AKALE Vs. OMALE (2017) LPELR-43336 and GTB PLC Vs. SOLOMON (2016) LPELR-40342 (CA) to contend that the provisions of
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Order 11 of the High Court of Lagos State (Civil Procedure) Rules, 2012 does not guarantee judgment for a Claimant by the mere filing of an application for judgment; and that where the statement of defence shows a prima facie good defence and/or raises triable issues, the Court will not enter summary judgment in favor of the Claimant/Applicant. Counsel argued that having regard to the Appellants Statement of Defence and the documents front loaded by the Appellant in the instant case, the lower Court ought to have granted the Appellant leave to defend the 1st Respondents Counter-Claim; rather than entering summary judgment against the Appellant which amounts to a perverse decision.
Learned counsel referred to the 1st Respondents Counter-Claim dated 15th November, 2016 and the Appellant?s Statement of Defence dated 15th of May, 2017; counsel also cited ILORIN EAST LOCAL GOVERNMENT Vs. ALASINRIN & ANOR (2012) LPELR-8400; SCIRROCCO INT. LTD Vs. UNIT
