WOODGRANT LTD. & ANOR. V. SKYE BANK PLC.
(2011)LCN/4521(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of May, 2011
CA/L/522/2008
RATIO
RAISING NEW POINTS ON APPEAL: WHETHER A PARTY WHO INTENDS TO RAISE A NEW POINT OR INTRODUCE A NOVEL MATTER IN THE APPEAL MUST SEEK LEAVE TO DO SO
The case of C.R.S.W.B. V. N.C. Eng. Ltd 2006 13 NWLR (Pt. 998) page 589 is relevant and stating the clear position of the law relating fresh point taken on appeal, wherein this court per Chukwuma-Eneh (as he then was) at page 607 said:- “The guiding principles in regard to taking fresh issues in an appellate court as this court have recently been expounded in Araka v Ejeagwu (2000) 12 SC (Pt. 1) 99; (2000) 15 NWLR (Pt. 692) 684 and Jov V. Dom (1999) 9 NWIR (Pt. 620) 538 and so, it is settled that a party as the appellant there who intends to take a new point or introduce a novel matter in the appeal must seek leave to do so. See Jov. v. Dom (1999) 75 SC (Pt.111); with respect, I take the view that the appellant has raised fresh issues here. The apex court in the aforesaid cited case went on to add that to contend that issue of law or constitution can be raised at any time and do nothing more than raise it, in an argument is like laying disrupting ambush for the opponent. And that proper application must be made so that the other side will know clearly what he has to meet. In further amplification of the principles it is trite that this Court as the appellate court will not allow fresh issue to be taken before it if such a fresh issue was not pronounced upon by the Court below. Also an appellant will not be allowed to take a point on appeal which was not tried or considered by the trial court except where the point involves substantial points of law, subtending or procedural and it is plain that no further evidence could have been adduced which would effect the decision or the points Araka V. Ejeagwu (Supra)”. PER CLARA BATA OGUNBIYI, J.C.A
SUMMARY JUDGMENT PROCEDURE: WHAT A DEFENDANT MUST SHOW BEFORE BEING ENTITLED TO DEFEND AN APPLICATION FOR SUMMARY JUDGMENT
In the case of Nischizawa Ltd V. Jethwani (supra) the main complaint of the appellant was that having held that the purpose of rule 3 of order 10 of the High Court of Lagos Civil Procedure Rules 1972 is to ascertain whether or not the defendant has a valid defence, the failure to follow the procedure laid down in the rule has deprived the judge of the materials necessary for the decision that the defendant has a valid defence. In delivering the lead judgment Obaseki JSC at pages 246 said:- “The requirement of the rule, I may observe, is the presentation of materials on oath showing a good defence. A valid defence is not necessarily a good defence. A good defence is always a valid defence. Also at pages 257 – 258 their Lordships proceeded and said:- “A statement of defence may plead statutory defence or other defences grounded in law but whether these will amount to a good defence on the merit will depend on the circumstances of the case. If the issue of law raised is substantial, surely the judge or court will hesitate to give leave to the plaintiff to sign judgment without giving defendant leave to defend. if the statement of defence is frivolous, and worthless, its presence will not stay the hand of the judge or court in entering judgment for the plaintiff for his claim,, Furthermore and at page 261 the apex court continued and said:- “The failure of the defendant therefore to file an affidavit disclosing a good defence places the defendant in an intolerably weak position to satisfy the judge or court that he has a good defence.” Still further and in the case of Sanusi v Cotia supra, the judicial interpretation of the Rules has laid down that, to be entitled to leave to defend, the Defendant must meet specifically the allegations and facts pleaded in the statement of claim as well as the facts deposed to in the affidavit in support of the motion for summary judgment. In Sanusi v. Cotia for instance the Apex Court per Uwaifo JSC at page 58 said:- “The law is clear that if a defendant decides to go on stage to contest an application for summary judgment, he cannot rely on a sham defence. See Nishizawa Ltd. v. Jethwani (1984) 12 SC 234, Mclardy v. Stateum (1890) 24 0.BD 504. A defendant must show a bonafide or good defence on the merits under the summary judgment procedure and not engage in manipulative and delaying tactics: See Macaulay v. Nal Merchant Bank Ltd. (1990) 4 NWLR (Pt.44) 283. To show that he has a good defence to the claim on the merits, the defendant must disclose facts to satisfy the court, usually by affidavit. To achieve this, he is required to condescend upon particulars per Lord Blackburn in Wallingford v. Mutual Society (1880) 5 App. Case 685 at p. 704 and the defence must not be seen as “frivolous and practically moon shine…. To condescend upon particulars implies a true and real disclosure of facts from which the court can readily discern a good defence. PER CLARA BATA OGUNBIYI, J.C.A
SUMMARY JUDGMENT: APPLICATION OF A SUMMARY JUDGMENT PROCEDURE
The case of U.B.A. Plc V Jaragarba (2007) 11 NWLR (Pt. 1045) {1P.247 is also relevant wherein the apex Court at page 270 said:- , “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 in expedient to allow a defendant to defend for mere propose of delay. It is for the plain and straight forward, not for the devious and crafty. See Sodipe v. Leminkainen (1986) 1 NWLR (Pt.15) 220……” PER CLARA BATA OGUNBIYI, J.C.A
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
1. WOODGRANT LTD.
2. MR. BEN ODUKWE – Appellant(s)
AND
SKYE BANK PLC. – Respondent(s)
CLARA BATA OGUNBIYI, J.C.A, (Delivering the Leading Judgment): The appellants herein have appealed against the ruling of the High Court of Lagos State dated 14th of April, 2008 delivered by Honourable Justice R.T.B. Adebiyi which granted the Reliefs sought in the motion for summary judgment brought pursuant to order II of the High court of Lagos State civil procedure Rules 2004. The Ruling of the High Court is contained at pages 175 – 178 of the Record of Appeal while the motion for summary judgment is contained at pages 78 – 119 of the Record of Appeal. The Ruling appealed against had granted the following reliefs to the Respondent:-
(a) The sum of N48,792,787,96k (Forty eight million, seven hundred and ninety two thousand seven hundred and eighty seven Naira ninety six kobo) due to the claimant as at 31st of December, 2006 on the credit facility granted by the claimant to the 1st Defendant repayment of which was guaranteed by the 2nd and 3rd and 4th Defendants.
(b) Interest on the said sum at the rate of 22.5% from 31st of December 2006 until date of judgment.
(c) 10% interest on the judgment sum from the date of Judgment until the judgment sum is paid
(d) An order of sale of the property known as plot H III Road 44 Victoria Garden City Lekki Lagos which property was used by the defendants in securing the credit facility granted by the claimant to the 1st defendant.
Being dissatisfied with the said ruling, aforesaid, the 1st and 2nd Defendants/appellants filed a Notice of Appeal dated 23rd June 2008 after having withdrawn an earlier Notice of Appeal dated 15th April, 2008. The subsisting Notice of Appeal dated 23rd June 2008 was filed on the same day and contained at pages 224 to 232 of the Record of Appeal. The Notice contains twelve grounds of Appeal and with the appellants having abandoned grounds 2, 3, and 4 the said grounds are accordingly struck out.
The brief of the claimant’s case at the trial court as set out at paragraphs 16, 18 and 19 of the statement of claim is contained at page 5 of the record of appeal. With the reliefs sought for at paragraph 19 of the statement of claim having been granted as reproduced earlier, I would set out paragraphs 16 and 18 of the said statement of claim which state as follows:-
“16. The amount due on the credit facility as at 31st August 2006 is N48,792,787.96 (Forty eight million seven hundred and ninety two thousand, seven hundred and eighty-seven Naira ninety-six kobo) due to the claimant as at 31st December 2006 the credit facility granted by the claimant to the 1st defendant repayment of which was guaranteed by the 2nd, 3rd and 4th defendants. The claimant shall rely on the statement of Account of the 1st defendant at the trial of this action.
17. …………………………………………….
18. The defendants have refused and/or neglected to pay the outstanding sum of N49,792,797.96 (Forty eight million seven hundred and ninety two thousand, seven hundred and eighty-seven Naira, ninety-six kobo) due to the claimant as at 31st December 2006.”
In their response to the foregoing state of claim, the 1st and 2nd Defendants/appellants had thus to say at paragraph 9 of their Statement of Defence at page 146 of the record of appeal in total denial of the claimant/respondent’s claim.
“9. Paragraphs 16, 18 and 19 of the statement of claim are denied. The claimant is put to the strictest proof of the allegation that N48.792,787.96 was due to the claimant from the Defendant or any of them whether as at the 31st December 2006 or at ail. Further, the 1st Defendant denies the statement of Account alleged in paragraph 16 of the statement of claim and put the claimant to the applicability and each and every content thereof”.
The appeal was entered in this court pursuant to an order of court for an extension of time within which to compile record sought and obtained on the 26th January 10. In accordance with the practice and Rules of Court briefs were filed and exchanged by parties. While the appellants brief was dated and filed on 2nd February 2010 that of the respondent was, also by the order of court, deemed filed on the 22nd April, 2010.
On the 7th February, 2011 at the hearing of the appeal, the learned counsel Messrs A. Adewumi and M.O. Abudu representing the appellants and respondent respectively adopted their respective briefs of arguments. While the appellants’ counsel on the one hand urged that the appeal be allowed, the respondent on the other hand submitted in favour of the dismissal of the appeal.
From the nine surviving grounds of appeal, the four issues formulated on behalf of the appellants are as follows:-
(a) Whether or not the provisions of order 11 of the High court Lagos state (civil procedure) Rules, 2004, pursuant to which summary judgment was awarded against the Appellants, constitute a violation of Appellants, fundamental and constitutional right to fair hearing under S.36 of the constitution of the Federal Republic of Nigeria , 1999, and therefore null and void and of no effect whatsoever. (Ground 1 of the Appeal)
(b) Whether or not the affidavit of Femi Aribaloye in support of the Application for summary judgment satisfied the fundamental requirement of order 11 Rule 1 of the High Court of Lagos State (Civil procedure) Rules, 2004 stipulating the condition-precedent to the exercise of the jurisdiction of the learned trial judge to entertain such an application. (Ground 5 of the Appeal). (c) whether or not the provision for summary judgment in the pre-2004 civil procedure Rules of the High court of Lagos State (including the High Court of Lagos State (Civil procedure) Rules 1972) are the same with the provision for summary Judgment in order 11 of the High court of Lagos State (Civil Procedure) Rules, 2004; and if not, then, whether or not the learned trial judge was right when he interpreted and applied the latter (that is, the 2004 Rules) against the Appellant on the basis of the criteria set for the former (that is, the pre-2004 Rules) in the cases of Sanusi Brothers (Nigeria) Limited v. Cotia Commercio Exportacao E. Importacao S.A. (2000) 6 S.C (part III) 43 and Nishizawa v Jethwani (1984) 12 SC 234. (Ground 7 of the Appeal).
(d) Whether or not the Respondent made out any prima facie case for summary judgment; and if not, then, whether or not the learned trial judge was right when he dismissed the Appellants, Statement of Defence as a sham (Grounds 6, 8, 9, 10, 11 and 12 of the Appeal).
On behalf of the respondent also, the four issues distilled were not too different from those formulated by the learned appellants’ counsel. I would deem it very unnecessary to reproduce the respondent’s issues therefore, as it would amount to mere repetition.
IST ISSUE
Whether or not the provisions of order ll of the High Court of Lagos state (civil Procedure) Rules, 2004, pursuant to which summary Judgment was awarded against the Appellants, constitute a violation of Appellants’ Fundamental and constitutional right to fair hearing under S.36 of the Constitution of the Federal Republic of Nigeria 1999, and therefore null and void and of no effect whatsoever.
While substantiating the said issue, the learned appellants’ counsel submitted that the summary judgment provision of order 11 of the High Court of Lagos State (Civil Procedure) Rules 2004, is fundamentally skewed in favour of an Applicant for summary judgment to the detriment of a Respondent thereto, and that it constitutes, by its very nature, an assault on the independence and impartiality which section 36(1) of the constitution of the Federal Republic of Nigeria, 1999, stipulates that every citizen may expect (and, is infact, entitled to) from a court of law before whom he or she is a litigant. That order 11 gave the right to an applicant for summary judgment to file an affidavit in support of the motion for summary judgment whereas the Respondent to the application does not have such a right which therefore denies the appellant of a fair hearing by such fact.
Furthermore, that order 11 of the High court of Lagos State (Civil Procedure) Rules 2004 has the effect of denying a litigant of its /his/her right to regular trial before an independent and impartial arbiter in view of section 36 of the constitution of the Federal Republic of Nigeria, 1999 which unambiguously guarantees such right to all citizens. The learned counsel, to buttress his submission cited the cases of Udo Akagha v Paico Ltd (1993) 4 NWLR (Pt. 288) 434 at 443 and Oche v State (2007) 5 NWLR (Pt. 1027) 214 at 238 wherein the basic criteria and attributes of fair hearing are constitutionally guaranteed to all litigants. That when the criteria and attributes of fair hearing is applied to the summary judgment provision of order 11 supra, the conclusion would be inescapable that the said provision is unfairly stacked in favour of a claimant as against a Defendant to a summary judgment claim.
Submitting in summary of the first issue therefore, the learned appellants’ counsel was emphatic that the summary judgment provision of order 11 of the High Court Rules in contention which provides only for an applicant for summary judgment to file an affidavit in support of his application, without extending a concomitant right to the respondent thereto to file a counter-affidavit to the content of the counter – affidavit, is against the rule of natural justice and the appellants’ right to fair hearing under section 35 of the constitution of the Federal Republic of Nigeria, 1999. That, hence, any proceeding conducted or judgment given pursuant to the said rule of court ought not to be allowed to stand. That the court should therefore resolve this issue in favour of the appellants and to declare the stipulations of the said order 11 as being fundamentally offensive against the independence and impartiality of the court system and the fair hearing provision of section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.
Responding to the submission by the appellants’ counsel, the learned respondent’s counsel Mr. M.O. Abudu vehemently argued that the 1st issue raised by the appellants did not arise from the judgment appealed against. That the learned trial judge did not .receive any argument for and against the constitutionality of order 11 of the (2004 Rules). That the learned trial judge did not also pronounce upon it. Furthermore, that the appellants did not seek leave to argue the ground of appeal which counsel submitted is a new issue and or legal point which was neither raised nor decided upon at the trial Court. That the said ground of appeal from which the issue is formulated is incompetent and should be struck out.
Alternatively and in the event this court overrules the respondent on the incompetence of fresh issue raised without leave of court, the counsel related copiously to the detailed provision of order 11 of 2004 Rules and drew a graphic contrast of same with the 1972 and 1994 rules wherein the similar order was designated as order 10 under the old previous Rules. Learned counsel, while examining the provision with exactitude submitted the traditional history of practice and procedure in this Country wherein he, argued that the High Court of Lagos State (Civil Procedure) Rules 2004 was the first to introduce the rule which had fully complied with constitutional provisions of fair hearing. Counsel argued the absence of surprise therefore that other States of the Federation of Nigeria have adopted similar Rules of Practice and Procedure in their various High Courts. That rather than condemning the (2004 Rules) as being in breach of the Right of fair hearing guaranteed by the 1999 Constitution, the appellant should as a matter of fact applaud the said Rules in giving prominence to the Constitutional Rights to fear hearing. In other words, that the procedure for summary judgment under order 11 of the 2004 Rules is not in breach of section 36 of the 1999 Constitution and therefore not unconstitutional. That the Court is in the circumstance urged to resolve this issue against the appellants.
For the determination of the 1st issue raised, it would be pertinent to refer to the judgment of the lower court appealed against and which as earlier indicated is contained at pages 175 to 178 of the record of appeal. The purport of the judgment from all its contents and ramifications, as rightly submitted by the learned respondent’s counsel, is concerned with and decided the issue of whether the Respondent is entitled to summary judgment under order 11 of the 2004, Rules. There is no where indicative of the appellants having addressed on the constitutionality of the said order 11 of the 2004 Rules as a subject of contention having been made an issue by the parties. It is trite and an elementary principle of law that issues are distilled from grounds of appeal which are also the product of ratio decidendi of the judgment/decisions arrived at. Without the point having been raised at the trial Court, the appellants are precluded from making the subject an issue before this Court on an appeal without the leave of this court first sought and obtained. lt is a fresh issue and which cannot be raised as a matter of course. I would further wish to restate for clarity that with the issue relating to the question of fair hearing under section 36 of the Constitution, it cannot be ruled out that the need for evidence could be a possibility. Fair hearing procedure cannot therefore with certainty be limited to question of law only which would in the circumstance not require the leave of court. By its very nature, the issue does not portray that it is a question of law simpliciter’ and no more; the position ought to have been taken by the appellants in a reply brief which they have failed to do. It is not for us therefore to take a stand on their behalf. The case of C.R.S.W.B. V. N.C. Eng. Ltd 2006 13 NWLR (Pt. 998) page 589 is relevant and stating the clear position of the law relating fresh point taken on appeal, wherein this court per Chukwuma-Eneh (as he then was) at page 607 said:-
“The guiding principles in regard to taking fresh issues in an appellate court as this court have recently been expounded in Araka v Ejeagwu (2000) 12 SC (Pt. 1) 99; (2000) 15 NWLR (Pt. 692) 684 and Jov V. Dom (1999) 9 NWIR (Pt. 620) 538 and so, it is settled that a party as the appellant there who intends to take a new point or introduce a novel matter in the appeal must seek leave to do so. See Jov. v. Dom (1999) 75 SC (Pt.111); with respect, I take the view that the appellant has raised fresh issues here.
The apex court in the aforesaid cited case went on to add that to contend that issue of law or constitution can be raised at any time and do nothing more than raise it, in an argument is like laying disrupting ambush for the opponent. And that proper application must be made so that the other side will know clearly what he has to meet. In further amplification of the principles it is trite that this Court as the appellate court will not allow fresh issue to be taken before it if such a fresh issue was not pronounced upon by the Court below. Also an appellant will not be allowed to take a point on appeal which was not tried or considered by the trial court except where the point involves substantial points of law, subtending or procedural and it is plain that no further evidence could have been adduced which would effect the decision or the points Araka V. Ejeagwu (Supra)”.
The Court below did not pronounce upon the Constitutionality or not of order 11, 2004 Rules, which in itself is a fresh issue sought to be raised for the first time on appeal. It is within the purview of the contemplation of the case of C.R.S.W.B. Vs. N.C. Eng. Ltd (Supra). The point did not arise from the judgment appealed against. Ground I of the ground of appeal predicating issue l, on this score, in the circumstance and as rightly submitted by the learned counsel for the respondent is incompetent and accordingly struck out.
However and on the merit of the constitutionality of the issue raised, the determination would require the reproduction of order 11 of the Rules which is the subject of contention:-
“1. Where a claimant believes that there is no defence to his claim, he shall file with his originating process the statement of claim, the exhibits, the depositions of his witnesses and an application for summary judgment which application shall be supported by an affidavit stating the grounds for his belief and a written brief in respect thereof.
2. A claimant shall deliver to the Registrar as many copies of all the processes and documents referred to in Rule 1 of this Order as there are defendants.
3. Service of all the processes and documents referred to in Rule 1 of this Order shall be effected in the manner provided under Order 7.
4. Where a party served with the processes and documents referred to in Rule 1 of this order intends to defend the suit he shall, not later than the time prescribed for defence, file:
(a) his statement of defence,
(b) depositions of his witnesses,
(c) exhibits to be used in his defence; and
(d) a written brief in reply to the application for summary judgment.
5(1) Where it appears to a judge that a defendant ahs a good defence and ought to be permitted to defend the claim he may be granted leave to defend.
(2) Where it appears to a Judge that the defendant has no good defence the Judge may thereupon enter judgment for a claimant.
(3) Where it appears to a Judge that the defendant has a good defence to part of the claim but no defence to other parts of the claim, the Judge may thereupon enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence.
6 Where there are several defendants and it appears to a Judge that any of the defendants has a good defence and ought to be permitted to defend the claim and other defendants have no good defence and ought not to be permitted to defend the former may be permitted to defend and the Judge shall enter judgment against the latter.,,
The Crux of the appellants’ submission is that order 11 is set out to fundamentally offend against the Independence and impartiality of the Court System and fair hearing provision of section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. The said provision reproduced states as follows:-
’36(1) In the determination of his civil rights and obligations Including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”.
The learned appellants’ counsel in contemplation submitted that order 11 of the High Court Rules in question has the effect of denying a litigant of his right to regular trial before an Independent and impartial arbiter as it is unambiguously guaranteed by section 36 of the constitution of the Federal Republic of Nigeria 1999 to all citizens. That when the criteria and attributes of fair, hearing is applied to the summary judgment provision of order 11, the conclusion would be inescapable that it is unfairly stacked in favour of a claimant as against a defendant to a summary judgment claim. From the submission of the appellants, it seeks to question the inadequacy of order 11 rule 4 which sets out the processes required to be filed by a Defendant/Respondent to a summary judgment application. Even in the face of repetition, I would again restate the requirements spelt out in Rule 4 which are as follows:-
(a) His statement of Defence;
(b) Deposition of his witnesses,
(c) Exhibits to be used in his defence and
(d) A written brief in reply to the application for summary judgment.
From the totality of the expectations of order 11 rule 4, it gives an opportunity to the Defendant/Respondent to re-act or respond to the processes, served on him by the claimant pursuant to order 11 Rule 1. A further significance of the processes is to enable the court hearing the application to determine whether the processes entitle the defendant the leave to defend.
By the totality of order 11 rule 4 reproduced supra, the interpretational intention is to afford the defendant a fair hearing by enjoining him to adequately put across his case against the claimant, who has filed a summary judgment application. It is the collective foregoing processes stipulated in order 11 rule 4(a – d) that would serve to counter the claim under the summary judgment application. The use of the word shall therefore places a mandatory duty on the defendant to file a prerequisite intention to defend.
The appellants’ counsel in his submission argued as deficient the nature of written brief expected by rule 4(d) which he argued is akin to counsel’s arguments and therefore cannot serve sufficient evidence on oath to oppose the application for summary judgment. That being a brief, counsel opined it cannot be a substitute for a counter-affidavit which is an evidence on oath. Further more that the rule in question has the effect of denying a litigant of his right to regular trial before an Independent and impartial arbiter as guaranteed by section 36 of the Constitution to all citizens.
I would quickly hasten to say that contrary to the submission by the learned appellants’ counsel, it is not the written brief alone that is required to be filed of the respondent on service of originating processes including the application for summary judgment. Order 11 Rule 4(d) should not, as rightly submitted by the learned respondent’s counsel, be taken in isolation and read in such a way as if it is the only process required of a Respondent in response to a Summary Judgment Application. In other words, the appellants’ learned counsel had read order 11 Rule 4 disjunctively and thus the basis of his misconception by submitting that his clients and all other Respondents to the Summary Judgment Application have been denied fair hearing resulting in a violation of section 36 of the 1999 Constitution. It is needless to emphasize the obvious that Order 11 rule 4 is very comprehensive wherein the requirements (a – d) render a written brief 4(d) only an addition to those stipulated in (a- c). The learned appellants’ counsel was, in grievous error therefore by submitting that it is the written brief and not all the Court processes listed in order 11 rule 4 (a)(b)(c) and (d) that were the entire case of the Defendant/Respondent.
In contradistinction to the practice under the previous rules 1972 and 1994, the learned respondent’s counsel rightly I hold, pointed out an improvement on THE 2004 Rules in question. In other words, that while the recent Rules make it compulsory for an applicant who intends to move a summary judgment application to file that application together with his Writ of Summons, statement of claim, the exhibits, the depositions of his witnesses, the previous rules require that an application can only be filed after the defendant enters an appearance. The provision of order 11 under the 2004 Rules, no doubt serve a double edge sword as it enables the claimant to bring before the Court all the weapons in his armoury as it were and also for the defendant to meet and prepare for all the points of the case against him including the summary judgment application. As rightly submitted by the learned respondent’s counsel also, the provision of the 2004 Rules, has, more than the 1992 and 1994 Rules, fully accorded fair hearing to the Respondents/Appellants. This I hold because by the provision of rule 5 the judge in considering whether or not leave to defend should be granted, is enjoined to consider the totality of the case put forward by the claimant/respondent including all the processes filed by the defendants/appellants pursuant to rule 4.
It is also pertinent to highlight that under the 2004 rules prominent recognition had been given to the principle that each party is entitled to know the other case in every detail. This will of course include the witnesses as well as the nature of the evidence they are coming to give in Court. It is therefore in no doubtful that the said order 11 procedure, contrary to the submission by the learned, appellants counsel, has given prominence to the Constitutional Right to fair hearing. The submission by the said appellants’ counsel therefore is a total misconception of the Constitutional provision, and which lacks merit. The 1st issue raised is in the circumstance resolved against the appellant.
ISSUE NO. 2
Whether or not the affidavit of Femi Aribaloye in support of the application for summary judgment satisfied the fundamental requirement of order 11 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2004 stipulating the condition – precedent to the exercise of the jurisdiction of the learned trial judge to entertain such an application.
In respect of the said issue and by his submission, the learned appellants’ counsel sought to challenge the affidavit of Femi Aribaloye in support of the respondent’s application for summary judgment which counsel argued did not satisfy the specific requirement as to content of such an affidavit under order II Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004. In other words that the affidavit did not contain a deposition of the applicant’s belief and the grounds for so believing that the respondent thereto has no defence to the claim; hence that the proceeding for summary judgment was incompetent, and the judgment culminating from it cannot therefore stand.
In further discrediting the affidavit in support of the application for summary judgment the learned counsel submitted same a mere repetition of the allegations contained in the statement of claim. That the criteria for specific demands for an affidavit in support of an application for summary judgment has not been met. i.e. to say the absence of a deposition of the applicant’s belief that the Respondent has no defence to the claim, and the grounds arriving at such believe. Counsel further submitted and conceded that while the substantive claim, and the application for summary judgment were generally within the jurisdiction of the learned trial judge, the absence of an affidavit of the nature required in support of an application for summary judgment was however a missing element in the case. That this has clearly deprived the Court of jurisdiction in, granting the specific application before it and thereby refusing leave to the appellants to defend the claim made against them. On the question of jurisdiction, the learned counsel cited a number of authorities inclusive of the celebrated case of Madukolu V Nkemdilim (1962) 2 All NLR 587 per Bairamian FJ at 595; Swiss Air V A.C.B. (1971) l All NLR 37; Ejiofodom V Okonkwo (1982) 11. C.74, and Bature V State (1994) 1 N.W.L.R. (Pt. 320) 267 per Ogundare JSC (of blessed memory) at 292 amongst others. That the provision relating to summary judgment in the 2004 Civil Procedure Rules does not provide for a respondent to such an application to file a counter-affidavit thereto. That the applicant under the said Rules must be held to stricter compliance with every requirement of the rules than an applicant under the old rules as canvassed by Vaughan Williams LJ in the case of Symon Co. V Palmer’s Store Ltd (1912) 1 KB 259. Significant and also considered in that case was the summary judgment provision of order 14 of the English Rules, from which our own rules also originated.
That since the issue touches on the competence of the Court, it was the duty of the learned trial judge to consider and rule thereupon. Plethora of authorities were cited by the learned counsel inclusive of the case of Barclays Bank v. Central Bank of Nigeria (1976) 6 SC 175; Obaba v. Military Governor, Kwara State (1994) 4 NWLR (Pt.336) 26 per Belgore JSC at 40 and Effiom v. State (1995) 1 NWLR (Pt.372) 507 per Onu JSC at 564 – 565. That in the absence of the learned trial judge to have ruled on the issue, the appellants have now raised same for the determination by this Court and seeking for the overturning of the summary judgment.
Responding to the submission on issue 2, the learned respondent’s counsel drew a graphic distinction between the provisions of order 14 rule 1 of the English Rules, white Book 1985 and order 10 of the 1972 Rules, which is a replica also of order 11 of the 1994 High Court of Lagos State Civil Procedure Rules and related same with the 2004 Rules which is the subject of contention. That the authorities of Nischizawa V Jethwani (1984) 12 SC. p 234 and Symon and Co. Vs. Palmers Store Ltd 1912 1 KB 259 and the opinion of Vanghan Williams LJ relied upon by the appellants are totally distinguishable and inappropriate. That order 11 of the 2004 Rules which is differently worded from orders 14 of the English Rules and 10 of the 1972 Rules as well order 11 of the 1994 Rules, does not require that the deponent to the affidavit in support of the motion for summary judgment must depose that the Defendant/Respondent to the application has no defence to the action.
The determination of this issue would require the reproduction of the following English rules of Court as well as those of the Lagos State Civil Procedure Rules 1972 and 1994.
Order 14 Rule 1 of the English Rules white Book 1985 therefore provides:-
“Where in an action to which this Rule applies a Statement of Claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may on the ground that the defendant has no defence to a claim included in the writ or to a particular part of such a claim or has no defence to such a claim or part except as to the amount of any damages claimed apply to the Court for judgment against the defendant.”
By the provision of order 14 Rule 2, of the English Rules, the manner in which the application under Rule I must be made has also been provided for as follows:-
“(1) An application under Rule 1 must be made by summons supported by an affidavit verifying the facts on which the application relates is based and stating that in the deponents belief there is no defence to that claim or part as the case may be or no defence except as to the amount of any damages claimed.
(2) Unless the court otherwise directs an affidavit for the purposes of the rule may contain statement of information or belief with the sources and grounds thereof.
(3) The summon a copy of the affidavit in support and of any exhibits referred to therein must be served on the defendant and not less than 10 days before the return day.”
Order 10 of the High Court of Lagos State Civil Procedure Rules 1972 which same was repeated in order 11 of the 1994 Rules also reproduced provides as follows:
“(a) Where the defendant appears to a Writ of Summons specially indorsed with or accompanied by a statement of claim under order 3 Rule 4 the plaintiff may on affidavit made by himself or any other person who can swear positively to the facts verifying the cause of action and the amount claimed (if any liquidated sum is claimed) and stating that in his belief there is no defence to the action except as to the amount of damages claimed if any, apply to a judge in Chambers for liberty to enter judgment for such remedy or relief as upon the statement of claim the plaintiff may be entitled to. The judge thereupon unless the defendant shall satisfy him that he has a good defence to the action on the merits or shall disclose such facts as may be deemed sufficient to entitle him to defend the action generally may make an order empowering the plaintiff to enter such judgment as may be just having regard to the nature of the remedy or relief claimed.”
The learned trial Court in its judgment on the record formulated the issue as to whether the 1st and 2nd defendants have raised a good defence to a part or all the claimants claim to be entitled to leave to defend the suit. If not, whether the claimant is entitled to an order entering summary judgment in the suit.
In arriving at its decision, the learned trial judge outlined both the claim put forward by the claimant as well as the defence by the 1st and 2nd defendants. That the defendants, although they did admit being given credit facilities of N20 million and N15 million Naira respectively, on the property in question, they however denied being indebted to the claimant in the sum alleged. At page 177 of the record of appeal, the trial Court arrived at the following deductions and said:-
‘The court finds upon consideration of the 1st and 2nd defendants defence and counter affidavit that the 1st and 2nd defendants failed to condescend upon particulars of facts or raw for determination at trial. The court finds that the defence put forward by them amounts to a bare denial and is therefore a sham See Nischizawa v Jethwani (1984) 12 SC 234. For this reason the court finds that the 1st and 2nd defendants are not entitled to leave to defend the suit.”
Judgment was thereupon entered in favour of the claimant per his Writ of Summons. The authority of the case of Sanusi V Cotia (2000) 6 SC (Pt. 111) p. 43 which the trial court relied upon as a guide is where the apex court held that in the consideration of the defence in an application of this nature, the defendants response must condescend upon particulars and contain a true and real disclosure of facts from which the Court can readily discern a good defence. The case of Nischizawa V Jethwani relied upon by the trial Court Supra was decided under the old High Court of Lagos Civil Procedure Rules predicated upon order 14(1) and (2) of the English Rutes. As rightly submitted by the learned respondent’s counsel therefore, the following criteria are very prominent and explicit in Nischizawa v. Jethwani supra:-
(a) That the defendant must have entered an appearance or given notice to defend.
(b) The Writ must be specially endorsed.
(c) The claim must be a liquidated sum.
(d) The affidavit verifying the facts relied upon must depose that in the deponents’ belief the defendant has no defence to the action.
The bone of the appellants’ contention is centred on the affidavit of Femi Aribaloye in support of the application for summary judgment, which counsel argued did not satisfy the requirement of order 11 rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004 reproduced supra. That none of the paragraphs deposed to by the deponent met the specific demand for an affidavit in support of an application for summary judgment; that is to say, a deposition of the Applicant’s belief that the Respondent has no defence to the claim, and the grounds for coming to such believe. The dictum of Vaughan Williams L.J in the case of Symon & Co. V Palmer’s Store supra, originating Summary Judgment Provision order 14 of the English Rules is specific wherein he made the following pronouncement and said:
“Order XIV provides for a novel procedure, which is inconsistent with the usual common law practice…. It is a new procedure dependent upon the presence of certain conditions, which are mentioned in the order…. The remedy given by the order is a most stringent one, namely a judgment without any trial. For my own part I cannot doubt that the framers of the Rules intended that the affidavit so required should be a condition precedent to the exercise of the power conferred by the order to give judgment without a trial. It no doubt may often happen that an affidavit which fails to satisfy the requirements of the order … may produce upon the minds of the master, or judge, who hears the case, a strong impression that, though the affidavit is not one which satisfies the term of the Order, it nevertheless, indicate a strong probability that the plaintiff has a good cause of action. Plaintiff however, in order to obtain judgment without a trial, must have complied with the terms of the Order.
However strong may be the impression produced by the affidavit upon the mind of the master, or judge, or court, as the case may be, that plaintiff may probably have a good cause of action – I am not now speaking with regard to the particular case before us, but generally – if there be not a compliance with order XIV rule 1, in respect of the affidavit to be made, there is no jurisdiction to give effect to that impression by making an order for judgment. Order XIV makes, no doubt, a very salutary provision for the purposes of preventing a defendant, who knows perfectly well that he owes the sum, claimed from postponing the time of payment, and putting plaintiff to further expenses in litigation which ought never to have taken place; but on the other hand, order XIV is an order which can be, and often is, abused…. It was necessary therefore, that the jurisdiction given by order IXV should be made conditional upon the making of an affidavit of the nature therein mentioned”
The nature of the judgment subject of this appeal is as pronounced by his Lordship Vanghan Williams LJ “namely a judgment without any trial”.
The competence of the affidavit so required of the defendants should also be a condition precedent to the exercise of the power conferred by the order to give judgment without a trial. Whether or not the plaintiff has a good cause of action amounting to summary judgment, would require that the Court is disposed of the condition precedent and fulfilled by the respondent for purpose of the Court exercising its jurisdiction.
The ,relevant question to pose at this juncture is, whether the claimant/applicant for summary judgment has placed before the Court an affidavit of its belief that the respondents/appellants have no defence to the claim?
On a close perusal of the entire ruling on the record which is subject of this appeal, it would be discovered as rightly submitted by the learned appellants’ counsel that the only reference made to the written address was in paragraph 4 of the portion of the ruling at page 176 of the record wherein the Court said:-
“The 1st – 2nd Defendants/Respondents filed a statement of defence dated the 19th of November, 2007 and a written address dated 19th November, 2007 in opposition to the claimant’s application.”
The appellants’ learned counsel in submitting on the foregoing conclusion drew our attention on the failure by the lower court to consider and rule on the issue canvassed in the written address, which concerned the competence of the Court on the application. It is pertinent to reiterate that the motion for summary judgment the affidavit in support of the motion, exhibits to be relied upon and written address of claimant’s/applicant’s counsel on the motion for summary judgment are all spanned and contained at pages 78 – 119 of the record of appeal. The Writ of Summons and Statements of Claim were also previously filed at pages 1 – 77 of the record. The 1st and 2nd Defendants Statements of Defence and their written address against claimant’s application for summary judgment are further contained at pages 145 – 147 and 150 – 151 respectively. There were of course no documents or witnesses to be relied upon by the defendants/appellants as stated clearly at pages 148 and 149 of the same record.
It is clear on the ruling of the lower court at page 176 of the record that due consideration was given to the 1st and 2nd Defendants/respondents statement of defence as well as the written address in opposition to the claimant’s application and consequent upon which the Court arrived at the issue to wit:- Whether the 1st and 2nd defendants have raised a good defence warranting the leave to defend the suit. The Court in its deliberation was also guided by the principles laid down in the case of Sanusi v. Cotia supra, where their Lordships of the apex court held the significance of the defendants response which must condescend upon particulars and contain a true and real disclosure of facts from which the Court can readily discern a good defence.
The applicant under the 2004 Civil Procedure Rules is required on the affidavit in support of motion for summary judgment to state the grounds why he believes that the Respondent to that application has no defence to the action. The said believe is not to say that the defendant has no defence to the action. This is unlike under the English rules and the 1972 and 1994 Rules High Court of Lagos State wherein the application must specifically state that the defendant has no defence to the action for purpose of vesting jurisdiction in the Court. The belief under the 2004 rules is predicated on personal assessment of the chances of the defendant in defending the action. In other words and as rightly submitted by the learned respondent’s counsel, it is not within the jurisdiction of the applicant to state that a defendant has no defence to the action. The court however has the business to determine whether or not a defendant has a defence to a summary judgment application. lt is in this regard therefore that the case of Symon & Co. V Palmers Store supra and which was decided under the old Rules is totally distinguishable from the 2004 rules and consequent upon which the submission by the learned appellants’ counsel and also the reliance upon the authority is inappropriate. By the 2004 Rules, order 11 requires that the applicant for summary judgment must state in the affidavit in support the “ground” or the “reason”, (as rightly stated by respondent’s counsel), why he believes the Respondents to the application did not have a defence. Throughout the Defendants/appellants statement of Defence as well as their written address against ‘the claimant’s application for summary judgment, no reason was advanced and rendering the affidavit by the claimant supporting the application for summary judgment ineffective or a derogation. For example, paragraph 1. 7 of the Defendants written address avers that their Statement of Defence discloses very substantial defence to the claimant’s claim. However and that notwithstanding, by the averments at paragraphs 2, and 5 of the 1st and 2nd Defendants statement of defence, the crucial paragraphs 2, 3, 5,7, 8, 9, 10 and 17 of the claimant’s statement of claim are all admitted. The said paragraphs form the basis of the facts leading to the belief that there was no defence to the claim.
The learned trial judge, contrary to the perception by the appellants’ counsel was on the right track in finding that the defence put forward by the defendants/appellants “amounted to a bare denial and is therefore a sham.”
In other words, the affidavit of Femi Aribaloye in support of the application for summary judgment had satisfied the fundamental requirements of order 11 rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004 in stipulating the condition precedent to the exercise of the jurisdiction of the learned trial judge to entertain the application. The said issue 2 is therefore resolved against the appellants.
ISSUE 3
Whether or not the provision for summary Judgment in the pre-2004 civil Procedure Rules of the High court of Lagos State (including the High court of Lagos state (civil procedure) Rules 1972 are the same with the provision for summary judgment in order 11 of the High Court of Lagos State (Civil Procedure) Rules, 2004; and if not, then whether or not the learned trial judge was right when he interpreted and applied the latter (that is, the 2004 Rules) against the appellant on the basis of the criteria set for the former (that is, the pre-2004 Rules) in the cases of Sanusi Brothers (Nigeria) Ltd. v. Cotia Commercio Rxporta – Cao E. Importacao S.A. (2000) 6 SC (Part III) 43 and Nishizawa v. Jethwani (1984) 12 SC 234.
I would hasten to point out that to a great extent, the said issue three had been partially dealt with in the second issue. In other words, clear cut distinction had been drawn and pointed out wherein the pre-2004 Civil Procedure Rules are remarkably different from the existing Rules, 2004. Needless to state, that the argument would not therefore be revisited. The aspect as to whether or not the learned trial judge interpreted and applied the 2004 Rules against the appellant on the basis of the Criteria Set for the pre-2004 Rules is a question now in issue for determination.
Submitting on the said issue, the learned appellants counsel argued that the trial court treated and applied the summary judgment provision of the 2004 Rules, as if it were one and the same with the provisions in the pre-2004 Civil Procedure Rules. That it was wrongful for the learned trial judge to refuse the appellants their right to defend the claim on the basis of some legal formula interpretative of the summary judgment provision of the 1972 Civil Procedure Rules which was materially different from the provision of the 2004 Rules prevented the learned trial judge from taking in view and appraising or correctly appraising all the processes required to be taking in view and appraised in determining an application for summary judgment.
Responding to the appellant’s submission, the respondent’s learned counsel commended the learned trial judge in its findings that the Defendants/Appellants have not shown reasons on the Court process filed by them why they should be given leave to defend the action. That with reference to the statement of defence filed by the appellants, it showed clearly that it contained mere denials. That it neither condescended to specifically answering the facts pleaded in the Statement of Claim nor the facts deposed to in the affidavit in support of the motion for summary judgment. That the submission by the learned appellants’ counsel is a complete misconception and hence the issue should be resolved against them.
The question for determination in this issue is whether the decision of the learned trial judge was borne out of his misapprehension that the 2004 Rules are the same with the 1972 and 1994 Rules?
I have stated earlier in the course of this judgment that the ruling of the learned trial judge appealed against is contained at pages 175 to 178 of the ‘record of appeal. Significant to further state that the motion for summary judgment and the affidavit in support as well as the Exhibit filed by the Respondent are all contained at pages 78 – 119 of the same record of appeal.
It is expected of the Defendant/Respondent as earlier stated under order 11 rule 4 of the 2004 Rules that he should file the following requirements to an application for summary judgment:-
(a) The Statement of Defence
(b) Depositions of his witnesses.
(c) Exhibits to be used in his defence and,
(d) A written brief in reply to the application for summary Judgment.
At pages 145 – 151 of the record of appeal, while the Defendant/Appellants satisfied the requirements of (a) and (d) as spelt out by order 11 rule 4 of the Rules, the same cannot be said of requirements (b) and (c). Hence they did not therefore fully comply with the said provision of the 2004 Rules by filing the court processes required. The consequential effect is that the Respondent/Appellant could not have placed sufficient materials before the court for it to consider and determine whether or not to grant leave to defend the action. This is strengthened by the express response by the respondents/appellants who at the lower court did not intend to rely on any documents as Exhibits at the trial of the action. They did not also file any written statement on oath of any witness. In further corroboration the Defendants/appellants filed a Notice that they shall be resting their case on that of the claimant’s witnesses. Pages 148 and 149 of the record of appeal are in evidence.
The learned appellants counsel in his submission also dwelt at great extent and vehemently criticized the findings by the trial court on the ground that the phrase “condescends upon particulars of facts or law” used in the judgment was inappropriate as the phrase was used in cases decided under the 1972 and 1994 Rules.
By the use of the phrase supra and as rightly submitted by the learned respondent’s counsel, it means no more than that the defendant did not meet specifically, the allegations and facts pleaded in the statement of claim as well as the facts deposed to in the affidavit in support of the motion for summary judgment.
Under the provision of order 11 Rule 5 of the 2004 Rules, the duty of the trial judge is to determine upon the materials placed before him which discretion must be exercised judicially and judiciously whether or not the defendant is entitled to leave to defend the action. At a close examination of the statement of defence filed by the appellants, same clearly is nothing more than mere denials. It did not as it were condescend to specifically answering the facts pleaded in the statement of claim or the facts deposed to in the affidavit in support of the motion for summary judgment. Also on a closer perusal of the averments in the Statement of Defence, same will reveal that it contains mere denials and no specific answer to the issues raised in the statement of claim and the affidavit in support of summary judgment. I have earlier on made reference to paragraphs 2 and 5 of the appellants’ statement of defence wherein paragraphs 7, 8, 9 and 10 of the Claimant’s Statement of Claim were admitted to the exclusion of crucial questions touching directly on whether or not the loan in question was taken, how much of the loan was repaid, whether the defendants property was indeed mortgaged to secure the loan and the exact amount of the loan outstanding. It is only the answers to the questions raised that would suffice as response to the issues raised in the statement of claim and the affidavit in support of the motion for summary judgment.
In the case of Nischizawa Ltd V. Jethwani (supra) the main complaint of the appellant was that having held that the purpose of rule 3 of order 10 of the High Court of Lagos Civil Procedure Rules 1972 is to ascertain whether or not the defendant has a valid defence, the failure to follow the procedure laid down in the rule has deprived the judge of the materials necessary for the decision that the defendant has a valid defence. In delivering the lead judgment Obaseki JSC at pages 246 said:-
“The requirement of the rule, I may observe, is the presentation of materials on oath showing a good defence. A valid defence is not necessarily a good defence. A good defence is always a valid defence.
Also at pages 257 – 258 their Lordships proceeded and said:-
“A statement of defence may plead statutory defence or other defences grounded in law but whether these will amount to a good defence on the merit will depend on the circumstances of the case. If the issue of law raised is substantial, surely the judge or court will hesitate to give leave to the plaintiff to sign judgment without giving defendant leave to defend. if the statement of defence is frivolous, and worthless, its presence will not stay the hand of the judge or court in entering judgment for the plaintiff for his claim,,
Furthermore and at page 261 the apex court continued and said:-
“The failure of the defendant therefore to file an affidavit disclosing a good defence places the defendant in an intolerably weak position to satisfy the judge or court that he has a good defence.”
Still further and in the case of Sanusi v Cotia supra, the judicial interpretation of the Rules has laid down that, to be entitled to leave to defend, the Defendant must meet specifically the allegations and facts pleaded in the statement of claim as well as the facts deposed to in the affidavit in support of the motion for summary judgment.
In Sanusi v. Cotia for instance the Apex Court per Uwaifo JSC at page 58 said:-
“The law is clear that if a defendant decides to go on stage to contest an application for summary judgment, he cannot rely on a sham defence. See Nishizawa Ltd. v. Jethwani (1984) 12 SC 234, Mclardy v. Stateum (1890) 24 O.BD 504. A defendant must show a bonafide or good defence on the merits under the summary judgment procedure and not engage in manipulative and delaying tactics: See Macaulay v. Nal Merchant Bank Ltd. (1990) 4 NWLR (Pt.44) 283. To show that he has a good defence to the claim on the merits, the defendant must disclose facts to satisfy the court, usually by affidavit. To achieve this, he is required to condescend upon particulars per Lord Blackburn in Wallingford v. Mutual Society (1880) 5 App. Case 685 at p. 704 and the defence must not be seen as “frivolous and practically moon shine….
To condescend upon particulars implies a true and real disclosure of facts from which the court can readily discern a good defence.”
As highly set out by the learned respondent’s counsel therefore, the principles laid down by the appellate court in Sanusi v. Cotia and Nischizawa v. Jethwani (supra) are guidelines and hence the use of the phrase “condescends upon particulars of facts or law” used is not the prerogative of learned trial judge considering applications for summary Judgment under the old Rules. It is rather a judicial guide to trial judges as to what they should consider in an application for summary Judgment or under the undefended list procedure before arriving at whether or not to grant leave to the defendant to defend.
The learned appellants counsel in his submission also made a heavy weather on the, pronouncement made by the learned trial judge at page 177 of the record, wherein reference was made to a counter affidavit of the 1st and 2nd defendants’. By mere reference made to a counter affidavit, a non existent document, which is not placed before a court, it did not in any way affect the totality of the findings of the Court or the justice of the case wherein the entire defence put forward amounted “to a bare denial and is therefore a sham.” These findings originated from the guidelines laid down by their Lordships of the apex Court in the case of Nischizawa V Jethwani under reference supra. The learned trial judge had therefore applied the said phrase appropriately. The defendants/appellants in the case at hand, had failed to put materials before the court that raised any doubt in its mind that this was not an appropriate case for the grant of Summary Judgment. The case of U.B.A. Plc V Jaragarba (2007) 11 NWLR (Pt. 1045) {1P.247 is also relevant wherein the apex Court at page 270 said:- ,
“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 in expedient to allow a defendant to defend for mere propose of delay. It is for the plain and straight forward, not for the devious and crafty. See Sodipe v. Leminkainen (1986) 1 NWLR (Pt.15) 220……”
As rightly submitted by the learned respondent’s counsel, the argument on behalf of the appellants at pages 16 and 17 of their brief which, disqualified, the use of the phrase condescend, to particulars under order 11 as being limited only to cases decided under the old Rules, is a complete misconception of the guiding principles laid down by their Lordships of the apex Court. The said issue I hold, is also resolved against the appellant.
The last issue is no 4 and states:-
“Whether or not the Respondent made out any prima facie case for summary judgment; and if not, then, whether or not the learned trial judge was right when he dismissed the appellants Statement of Defence as a sham”.
Submitting on this issue, the learned appellants’ counsel in summary argued the wrongful view taken by the lower court in failing to correctly appraise all the processes relevant to the application for summary judgment. That the court was as a result in error when it found that the applicant had made out a prima facie case warranting the award of judgment without a trial against the appellants.
Responding to the submission, the respondent’s counsel re-affirmed persistently the contention that the claimant/Respondent has proved its entitlement to the judgment under the summary judgment procedure.
Without having to deliberate into an act of mere academic, I would straight away state that the issue at hand has been comprehensively dealt with within issue three which was determined against the appellants. In other words and with the respondent having made out a prima facie case for Summary Judgment the question raised in issue 4 would serve to confirm the obvious to the effect that the learned trial judge acted aptly in dismissing the appellants’ Statement of Defence as a sham. The said issue 4 without much ado is also resolved against the appellants.
On the totality and with all the four issues resolved against the appellants, the appeal, I hold, is devoid of any merit and is accordingly dismissed. The Ruling of the High Court of Lagos State delivered by Honourable Justice R.T.B. Adebiyi and dated 14th April, 2008 which granted the Reliefs sought in the Motion for Summary Judgment brought pursuant to order 11 of the High Court of Lagos State Civil Procedure Rules 2004 is hereby affirmed. With costs following events, I would award the sum of N50,000.00 in favour of the Respondent against the appellants.
Appeal is dismissed with N50,000.00 costs to the respondent.
JOHN INYANG OKORO, J.C.A: I read before now the illuminating judgment of my learned brother, Ogunbiyi, JCA, just delivered and I agree that this appeal lacks merit and ought to be dismissed. My Lord has admirably and quite efficiently dealt with al the salient issues submitted by the parties for the determination of this appeal and I respectfully adopt all the reasoning and conclusions of my learned brother in all the four issues as mine. I too, dismiss this appeal and abide by all the consequential orders made in the lead judgment, that relating to costs, inclusive.
MOHAMMED AMBI-USI DANGUMA J.C.A: I have had the advantage of reading before now the Judgment just delivered by My Learned brother C.B. Ogunbiyi JCA P.J. and I agree with the reasoning and conclusion arrived at after a meticulous consideration of the issues formulated that the appeal is devoid of merit and deserves a dismissal. The four issues formulated by the respective parties herein which are similar, in essence, question the constitutionity of the Lagos State High Court Civil Procedures Rules 2004, Order 11 thereof as it appertains the jurisdiction invested in the trial court to give summary Judgment upon an undefended list procedure and also whether such a right or procedure or practice is not in violation of the Right to fair hearing and by an impartial and independent tribunal or courts as enshrined in section 36, 1999 Constitution. Essentially also, the appeal complains that the Respondent had not made out a case of summary Judgment and, that the dismissal of the Statement of defence as a “sham,, was wrongful.
Having heard the parties through their briefs of argument and having meticulously studied the Record of appeal in its entirety I do not find where and how the Constitutional guarantee of fair hearing has been breached. The parties were given adequate time and opportunity, indeed all facilities for the presentation of their respective cases as constitutionally enjoined. The High Court Civil Procedure Rules of Lagos State 2004, has all the inbuilt mechanism for fair hearing as correctly adumbrated in the lead Judgment.
A party who fails to take advantage of the right or options offered as the Appellant herein cannot complain.
In any case, a summary Judgment procedure for a case brought under the undefended list does not automatically call into play a favourable judgment. It has to be a judgment on its merit as deserved and one based upon the documents filed. Once the court is satisfied, it has a duty to enter judgment as deserved. In OGBI V. OGBEH 92006) 39 LRCN 17, at 39 the Supreme Court held thus:
“The only duty in a civil claim is to render unto a party as power his proven claim”.
Plaintiff now respondent had proved his claim based on the documents filed, which had no defence thereto on its merit. The trial court was therefore right and had no option than to render the judgment as it did.
Although the constitutional guarantee of the independence and impartiality of the trial High court is alleged to be infringed by the provisions of order 11 of the Lagos state High Court Civil Procedure Rules 2004, I do not see how the composition and impartiality of and independence of the court has been so affected. Furthermore, and not withstanding that the issue of constitutionality of the Rules were wrongfully raised for the first time on appeal and without leave, and deserves a striking out, and thus a non consideration of same; but as stated aforesaid, a consideration of same discloses no merit after all.
In the circumstances, I too join my Lord in the lead Judgment by concurring with him and in dismissing this appeal and abiding by the consequential orders of affirming the Judgment of the learned trial Judge R.T.B. Adebiyi of the Lagos State High court delivered on 14/4/08 and with
the order relating to costs as made in the read Judgment.
Appearances
Mr. A. Adewumi with Y. Martins (miss)For Appellant
AND
Mr. M.O. AbuduFor Respondent
