ABU,TEACHING HOSPITAL ZARIA & ANOR v. STAR GLOBAL MARKETING LTD (2021)

ABU,TEACHING HOSPITAL ZARIA & ANOR v. STAR GLOBAL MARKETING LTD

(2021)LCN/15179(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, March 18, 2021

CA/K/334/2012

Before Our Lordships:

Saidu Tanko Hussaini Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

1. AHMADU BELLO UNIVERSITY TEACHING HOSPITAL, ZARIA. 2. CHIEF MEDICAL DIRECTOR, AHMADU BELLO UNIVERSITY TEACHING HOSPITAL, ZARIA APPELANT(S)

And

STAR GLOBAL MARKETING LIMITED RESPONDENT(S)

RATIO

BURDEN PLACED ON A DEFENDANT OPPOSING AN APPLICATION FOR SUMMARY JUDGMENT

As correctly argued by appellants, what is required of a defendant opposing an application for summary judgment is to file a counter affidavit disclosing triable issues. A triable issue is a genuine issue which would preclude entry of summary judgment: see Ilorin East Local Government v. Alasinrin (2012) ALL FWLR (PT 645) 246 and Amede v. UBA (2008) 8 NWLR (PT 1090) 623 @ 662. At that stage, it is not necessary for the Court to decide whether the defence had been established, all that is required is whether the facts deposed to by the defence have disclosed a prima facie defence to the plaintiff/applicant’s action: see Okambah v. Sule (1990) LPELR-2422 (SC); (1990) 9-10 S.C. 47 @ 55 -56. Leave to defend ought to be given unless there is clearly no defence at all: see F.M.G. v. Sani (1990) 7 S.C. (PT 11) 89 @ 114 – 115, 119, PER BOLOUKUROMO MOSES UGO, J.C.A.

HOW CONFLICTING AFFIDAVITS ON A MATERIAL FACT MUST BE RESOLVED

Where affidavits conflict on a material fact, credibility becomes an issue for which oral evidence must be taken to enable the Court decide for itself by watching the demeanour of witnesses to be called by parties to know who is lying and who in its opinion is speaking the truth. It does not even matter that none of the parties asked to be allowed to cross-examine any of the deponents or to call any witnesses. That is the position long settled by the apex Court in Falobi v. Falobi (1976) 9-10 S.C,; (1976) LPELR-1236(SC) and followed by a long line of cases too numerous to mention here. That point is now even codified in Section 116 of the Evidence Act 2011 stating that: S.116. When there are before the Court affidavits that are irreconcilably in conflict on crucial facts the Court shall for the purpose of the resolving the conflict arising, from the affidavit evidence, ask the Parties to proffer oral evidence as to such facts, and shall hear such oral evidence, or the deponents of the affidavits and such other witnesses as may be called by the parties. PER BOLOUKUROMO MOSES UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal challenges the correctness of the decision of the High Court of Kaduna State of 30/07/2012 entering summary judgment for respondent. Respondent in Suit No: KDH/Z/97/2011 claimed against appellants:
1. A declaration that the plaintiff is entitled to full payment of ₦11,635,000.00 being the agreed price for all the goods supplied to the defendants by the plaintiff upon delivery thereof on 17th March, 2009.
2. An order setting aside the document purporting to reduce the debt owed to the plaintiff by the defendants from ₦11,635,000.00 to ₦4,925,500.00 as void at the instance of the plaintiff for lack of consideration on the part of the defendants and undue influence.
3. Order of specific performance by the defendant by paying the sum of ₦6,709,500.00 as debt owed to the plaintiff by the defendants on the contract between the parties.
4. N4m as damages.
5. 25% interest of ₦6,709,500.00 from 2009 till payment is made.
6. Cost of this suit.

Its case as disclosed by it in its statement of claim and affidavit in support of its motion for summary judgment was that appellants contracted with it that it supply them, and it did supply them, medical consumables to the tune of ₦11,635,000.00 (Eleven Million, Six hundred and Thirty-five Thousand Naira). Contrary to their agreement, it averred, appellants did not pay it fully for the goods; rather, they paid it only ₦4,925,500.00, even as they took delivery of the entire goods on 17/03/2009. Instead of making full payment, it complained, appellants rather wrote it a letter dated 07/04/2009 purporting to unilaterally modify the terms and conditions of their already concluded contract. It averred that the said letter of appellants modifying their agreement was intended to harass, intimidate and unduly influence it to accept the paltry sum of ₦4,925,500.00 instead of the total sum of ₦11,635,000.00 agreed between parties. It claimed all its entreaties to appellants to complete the payment for all the goods fell on deaf ears, not minding that the goods would not be accepted by the manufacturers in the U.S., the goods having been purchased by it before shipment into Nigeria. Pressed by funds to complete the payment of the manufacturers of the goods and also

settle contingent costs, it said, it signed the document presented to it by appellants and took the sum of ₦4,925,500.00 from appellants. Claiming that appellants’ ‘purported’ variation/modification of the contract was voidable at its instance, it commenced its action, originally against Ahmadu Bello University, Zaria as first defendant, and appellants, but Ahmadu Bello University Zaria was however struck from the suit by a ruling of the Court on 18/4/2012 at its own instance on the grounds that it was a different legal entity from appellants and no wrong doing was alleged against it by Respondent.

Appellants in their joint statement of defence to the claim, to which they also joined a counterclaim, averred that they had only email correspondences with Respondent, which correspondences did not result in conclusive contract, for Respondent to supply them medical consumables on which an order may be placed. They asserted that there was no obligation on them, by the correspondences between parties, for them to pay for all the sample goods that may be brought by Respondent as acceptance was to be subject to their needs. On receipt of the

goods and after going through them, they said, they forwarded to respondent their acceptance of the ones required by them and also its monetary value in the sum of ₦4,925,500.00. That amount, they further asserted, Respondent also accepted without complaint in its letter to them dated 28th April 2009. They thus denied indebtedness to respondent in the sum of ₦6,709,500.00 or any other amount for balance of the goods supplied by respondent that were rejected by them. Instead, they alleged, it was respondent that was indebted for maintaining and ensuring the safety of its said goods abandoned by it in their premises. On that basis, they counterclaimed against it for (1) the total sum of ₦5m being expenses incurred by first appellant for maintaining and ensuring the safety and security of respondent’s goods abandoned in its premises, and (2) interest in the said total sum of ₦5m at the rate of 20% per annum from the date judgment is delivered until the total sum is fully liquidated.

After hearing arguments on the motion for summary judgment, Isah, J., in his judgment of 30/07/2012 came to the conclusion that appellants’ counter affidavit

did not disclose any defence to the merit of respondent’s claim. As for the 28th April 2009 letter of respondent accepting ₦4,925,500.00 as full payment, his Lordship labeled it a product of intimidation from appellants to respondent. On that basis, he held appellants liable to pay respondent the balance of ₦6,709,500.00 claimed by it; awarded it further damages of ₦2m, and equally ordered that appellants pay Respondent interest on the judgment sum at the rate 10% per annum from 2009 to 2011 and thereafter at 5% until the entire judgment debt is liquidated.

Vexed by that judgment, appellants have brought the instant appeal to this Court and have distilled from its six grounds the following five issues for this Court to determine:
1. Whether this Court is empowered to set aside the judgment of the trial High Court of Kaduna State of 30/07/2012 on the grounds that it failed to exercise its discretion judicially and judiciously in entering judgment in favour of respondent under Order 11 Rules 1 and 6 of the Kaduna State High Court (Civil Procedure) Rules 2007 when there were clearly triable issues from their counter affidavit to the motion

for summary judgment and their statement of defence and counterclaim.
2. Whether the trial Court was right in its decision to grant the declaratory relief, damages and prejudgment interest sought by the respondent under summary judgment proceedings.
3. Whether the trial Court’s decision to vary the mutual agreement between the parties occasioned a miscarriage of justice.
4. Whether the failure of the trial Court to make a pronouncement on their counterclaim amounted to a breach of their fundamental right to fair hearing and grave error in law.
5. Whether the trial Court was clothed with the requisite jurisdiction to entertain the suit given that appellants are not juristic persons.

Respondent did not respond to the appeal, despite service of processes on it, so no issues were formulated by it. The appeal will therefore be determined on the issues and arguments of appellants alone.

On their issue one of whether the trial Judge exercised his discretion correctly in entering judgment for Respondent on its summary judgment and holding that they did not disclose a defence on the merit to respondent’s claim, appellants

argued that it is trite law that what is required of a defendant wishing to resist a summary judgment is to file a counter affidavit disclosing triable issues. Relying on dicta in Ilorin East Local Government v. Alasinrin (2012) ALL FWLR (PT 645) 246 and Amede v. UBA (2008) 8 NWLR (PT 1090) 623 @ 662, they submitted that a triable issue is a genuine issue which would preclude entry of summary judgment whenever there is the slightest doubt as to the facts; that such triable issue must be disclosed in the defendant’s affidavit in support of his notice to defend to move the matter to the general cause list for trial on pleadings, at which stage, they submitted and cited Okambah v. Sule (1990) LPELR-2422, it is not necessary for the Court to decide whether the defence had been established. All that is required is whether the facts deposed to in the defence had disclosed a prima facie defence to the action. They then directed the Court’s attention to their depositions in the affidavit in support of their notice to defend as well as paragraphs 6 and 7 of their joint statement of defence where they averred that Respondent by its 28th April 2009 voluntarily

expressed her unqualified acceptance of the sum of ₦4,925,500.00 as full payment while also undertaking to retrieve the medical supplies not required by them only to later make a U-turn to claim ₦11,635,000.00 as the price of all the goods supplied and delivered by it to them. That averment, they submitted, raised a triable issue and needed further explanation from respondent, even more so as there was nothing before the Court to suggest that their acceptance of the goods was unconditional. They submitted that even respondent’s contention and relief based on it that the Court set aside its letter of 28/04/2009 accepting ₦4,925,500.00 as full payment and also undertaking to retrieve its medical supplies because the said letter was made without consideration and on undue influence by them contradicted its averment in paragraph of its statement of claim that it needed the funds to complete payment to the manufacturers of its goods and also settle contingent costs hence it signed the documents presented to it by them and took the said ₦4,925,500.00 as full payment. That contradiction, they submitted, also needed further explanation, which could only

be done by calling evidence during trial on the general cause list. In the face of the conflicts in affidavits, they complained, it amounted to arbitrary use of discretion for the lower Court to resolve them on affidavits alone instead of taking oral evidence as suggested in Falobi v. Falobi (1976) 9/10 S.C 14,15 and the several decisions following it.

On the whole, they submitted, their affidavit and statement of defence disclosed triable issues making it necessary that they be granted leave to defend so this issue should be resolved in their favour.

On issue 2, relating to the correctness of the grant of declaratory reliefs by the lower Court, they cited Maja v. Samouris (2002) 7 NWLR (PT 765) 100 @ 101 to submit that it is trite law that declaratory reliefs cannot be granted without the plaintiff pleading and leading evidence satisfactory to the Court of his entitlement to such relief. They also cited the Order 17 Rule 3(1) of the Kaduna State High Court (Civil Procedure) Rules 2007 to submit that appellant is enjoined to plead particulars of the undue influence relied on by him before the Court can sustain that plea, but he failed to do that.

Relying still on Maja v. Samouris (2002) 7 NWLR (PT 765) 100 @ 101, they also argued that the damages of ₦4,000,000.00 claimed by respondent, for which the lower Court awarded them ₦2,000,000.00, were not liquidated damages that can be claimed by way of summary judgment. This is even more so in a case of breach of contract which only attracts liquidated damages, so the trial Judge ought to have struck out that claim. In any case, they argued, the trial Judge ought to have called for proof of such damages by calling evidence, thus, made it necessary that the case be moved to the general cause list, the law being trite, they argued and cited Onadeko v. UBN Plc (2005) ALL FWLR (PT 250) 77, that in order to maintain an action under the undefended list every relief in the action must be for liquidated money demand.

Appellants also assailed Respondent’s claim by way of summary judgment for 25% pre-judgment interest on its claim of ₦6,709,500.00 from 2009 to 2011. While noting that the trial Judge rather awarded 10% interest, they cited a number of cases, including Hadejia Jama’are River Basin Development Authority v. Chimande (Nig.) Ltd

(2016) LPELR-40202 (CA) 16-17 and Union Bank of Nigeria Plc v. Sepok Nigeria Ltd (1998) 8 NWLR (PT 578) 439, to submit that such pre-judgment interest was in the realm of special damages and so needed specific pleading and strict proof which was not contained in the affidavit filed by Respondent in support of its application for summary judgment, so the grant of pre-judgment interest was also baseless and needed to be set aside.

On issue 3, they argued that the learned trial Judge in accepting Respondent’s allegation of undue influence by them on it in making its said 28/4/2009 letter occasioned another miscarriage of justice, in that he did not only fail and/or neglected to honour parties’ mutual agreement, he also interpreted the contents of the said 28/4/2009 letter of Respondent solely on respondent’s claim of undue influence without subjecting the veracity of that claim to a proper test. Contrary to the trial Judge’s finding, they argued, no evidence of intimidation was even adduced to enable him reach that finding. At any rate, they further argued, citing Rhodes-Vivour, JCA (as he then was) in

Oilserv Ltd v. L.A.I. & Co. (Nig.) Ltd (2008) 2 NWLR (PT 1070) 209, it is only a natural person that can force someone to do an act; a legal person cannot, since it is not a living person. Citing Kerr, J., in Occidental Worldwide Investment Corporation v. Skibs A/S Avanti (1976) 1 Lloyd’s Rep. 293, they argued, too, that in determining whether there was coercion of will, such that there was no true consent, it is material to inquire whether the person alleged to have been coerced did or did not protest; whether at the material time of the alleged coercion he did not have alternative course open to him such as adequate legal remedy, and whether after entering the contract he took steps to avoid it. They rounded off by arguing that appellant ought to have mitigated damages by retrieving its unaccepted goods from their premises and its refusal to do that should have in any case resulted in the outright rejection by the trial Judge of its claim for ₦6,709,500.00.

On issue 4, they argued that the lower Court in entering judgment for respondent said nothing about their counterclaim which is in law different and independent from the main claim of Respondent. By that

omission, they argued, they were denied fair hearing on the counterclaim, the consequence of which is that it nullified the decision of the trial Judge regardless of whatever its decision would have been had the breach of fair hearing not occurred.

On issue 5, they relied on The Administrators/Executors of the Estate of Sani Abacha (Deceased) v. Eke-Spiff (2009) 7 NWLR (PT 1139) 97 @ 136 among cases and argued that only natural and juristic persons can sue or be sued in Court; that when either of the parties is not a natural and juristic person capable of exercising rights and obligations under the law the other party may raise this fact as a preliminary objection, which if upheld leads to the action being struck out. Where such a non-juristic person is sued, they submitted, judgment cannot be given for or against them; that it even affects the jurisdiction of the Court because proper parties are not before the Court, they submitted citing Christaben Group Ltd v. Oni (2008) 18 NWLR (PT 1097) 84. They submitted that first appellant, Ahmadu Bello University Teaching Hospital, Zaria, is not a juristic person; that by the combined effect of

Sections 1, 7 and 19 of the University Teaching Hospitals (Reconstitution of Boards, etc.) Act, CAP U15, Laws of the Federation of Nigeria 2004 the administrative powers and authorities of University Teaching Hospitals owned by the Federal Government were vested in the Management Boards of the various Teaching Hospitals and it is those Boards that can sue and be sued. They referenced the Schedule to that Act where first appellant is listed as Number d. While recognizing that a misnomer as to name of a person sued can be cured by an amendment, they argued that by no stretch of imagination can the defect in the name of first appellant as identified by them be described as misnomer, i.e. a mistake in its name, as to permit an amendment under the law. Misnomer, they submitted is where the name of a juristic person is a misspelt. The failure of Respondent to sue juristic persons, they argued, prevents the trial High Court of Kaduna State and even this Court from exercising jurisdiction to hear the case. On the basis of these arguments, they prayed us to allow the appeal and set aside the judgment of the lower Court.

For reasons that shall become apparent sooner than later, by reason of the order we intend to make in this appeal, I shall only take on those issues canvassed by appellants that are capable of invalidating or at least result in upsetting the entire decision of the lower Court if resolved in favour of appellants. Those issues, in my opinion, are only three in number. Incidentally too, they also largely encompass all the arguments of appellants in this appeal. They are:
(1) Whether appellants were not juristic persons capable of being sued and that their lack of that capacity denied the lower Court and even this Court of jurisdiction to entertain this suit.
(2) Whether the lower Court exercised its discretion judicially and judiciously in entering summary judgment for Respondent on the affidavit evidence before it.
(3) Whether the trial Court was right in its decision to grant the declaratory relief, damages and pre-judgment interest sought by the respondent under summary judgment proceedings.

Let me start with issue 1 above where appellants argued that first appellant, Ahmadu Bello University Teaching Hospital, is not a juristic person; that by the combined effect of Sections 1, 7 and

19 of the University Teaching Hospitals (Reconstitution of Boards, etc.) Act, CAP U15, Laws of the Federation of Nigeria 2004, the administrative powers and authorities of University Teaching Hospitals owned by the Federal Government were vested in the Management Boards of the various Teaching Hospitals; that first appellant is actually listed as No. (d) in the Schedule to that Act, and all that means that first appellant is a non-juristic person with no legal capacity to sue or be sued and that denies the lower Court and even this Court jurisdiction over the appellants as proper parties are not before the Court. They were silent on 2nd appellant.

In answering this argument I must re-emphasize that, while this case was still at the lower Court, the erstwhile first defendant in the action, Ahmadu Bello University Zaria, formally brought before that Court a preliminary objection to strike out its name from the suit. Its reason for that preliminary objection, as shown earlier, was that it was not a proper party to the suit; that the proper defendants were the appellants (then 2nd and 3rd defendants to the suit) who according to it (Ahmadu Bello University, Zaria)

were also creations of statute – first appellant in particular, according to it being a creation of Section 19 of Cap 563 Laws of the Federation of Nigeria 1990. For that reason, it alleged, appellants were different legal entities on their own, separate from it (See pages 177 and 178 of the records). That preliminary objection, which was accompanied with a written address, was served on all parties including appellants herein (see penultimate paragraph of page 176 of the records of appeal appellant’s acknowledged receipt of that process) and was ruled upon separately by the lower Court on 18/04/2012 by upholding it and striking out Ahmadu Bello University, Zaria, from the suit before the Court later delivered its summary judgment that is the subject of this appeal on 30/07/2012. In that 18/04/2012 Ruling of, the trial Judge, Isah, J., made the following crucial finding on the status of appellants:
“It is not in doubt that the applicant is a creation of statute as canvassed above, likewise the 2nd defendant [first appellant herein] is a creation of statute with its own board which respondent highlighted was repealed and a new law enacted

reconstituting its board members. It has been judicially noticed that the 1st and 2nd defendants do bear the same name and the 1st defendant’s students benefit from the 2nd while training its medical students. This however does not make the applicant a necessary party as the applicant is distinct from the 2nd defendant and the outcome of the case will not affect the applicant. The applicant is autonomous so also with the 2nd defendant thereby vesting legal entity of (sic) both the plaintiff (sic: applicant) and the 2nd defendant respectively.
“…
“Decree (No 10 of 1985) which now replaced by Section 3 LFN 04 created the 2nd defendant thereby making it autonomous and distinct from the applicant.”
(Emphasis all mine).

This ruling of the lower Court of 18/4/2012 confirming the status of first appellant as a legal entity so vested by statute is not challenged by appellants in their notice of appeal in this appeal. They only challenged the 30th July, 2012 summary judgment of that Court against them. In the absence of an appeal specifically directed at, that 18/4/2012 ruling affirming

legal status, it stands, rightly or wrongly, against every party to that proceeding including appellants: see Ikweki v. Ebele (2005) 11 NWLR (PT 939) 397 @ 427; (2005) ALL FWLR (PT 257) 1401 @ 1422 (SC); Oshodi v. Eyifunmi (2000) 13 NWLR (PT 684) 298 @ 332 (SC), APGA v. Anyanwu (2014) 7 NWLR (PT 1407) 541 @ 575 (SC), Hambe v. Hueze (2004) 84 LRCN 455.

And by the way, if appellants were not juristic persons, in what capacity did they counterclaim against respondent and are arguing here, correctly, that their counterclaim is in law an independent action? Are they then suggesting that the counterclaim was after all filed by them in abuse of process of Court? They seem to be blowing hot and cold at the same time. I have no hesitation in resolving this issue against appellants.

I am afraid their contention that declaratory relief cannot be granted by way of summary judgment is also not well founded. Appellants in making that argument seem to have overlooked the fact that the authorities cited by them in support of that argument were founded on the old Rule regime and not the one presently in operation in the High Courts of Nigeria including the High

Court of Kaduna State. By the extant High Court (Civil Procedure) Rules where parties frontload their evidence along with their originating processes, it is no longer the law that declaratory reliefs cannot be claimed by an application for summary judgment. In GE International Operations Ltd v. Q-Oil & Gas Services (2015) 1 NWLR (PT 1440) 244 this Court held that the Court could properly award/grant declaratory relief by way of summary judgment under the new rules of Court as the frontloaded witness statement on oath was synonymous with evidence, unlike in the old system where only a bare writ of summons and statement of claim, if any at all, is filed. That decision has since been endorsed by the apex Court on appeal in GE International Operations Ltd v. Q-Oil & Gas Services (2016) 10 NWLR (PT 1520) 304, with Ngwuta, J.S.C. (his brethren Mahmud Mohammed C.J.N., Galadima, Rhodes-Vivour, and M.D. Muhammad JJ.SC concurring) saying at p. 330 – 331 thus:
“Issue 2 is on the lower Court’s reliance on the respondent’s witness statement on oath to grant declaratory reliefs. In an action for declaration of a right, the plaintiff

must satisfy the Court by credible evidence that he is entitled to the right he claims. The claim cannot be granted on the admission of the defendant.
“In my view, the evidence to support a claim for declaration can be oral or documentary. As rightly held by the lower Court, the Rivers State High Court (Civil Procedure) Rules 2006 provides for the filing of witness statement. In compliance with the rules, the respondent filed a witness statement on oath. The witness statement is in the nature of affidavit evidence.
…
“The requirement that a plaintiff must by credible evidence satisfy the Court that he is entitled to the declaratory relief he claims is satisfied by the witness statement made on oath pursuant to the 2006 Rules of the Rivers State High Court.”
And after reproducing the relevant provisions of the Rivers State High Court (Civil Procedure) Rules on default judgment, His Lordship concluded with this clincher:
“Pre-2006 decided cases on the issue of adoption

of witness statement are inapplicable because of the requirement for witness statement on oath. I resolve issue 2 in favour of the respondent.”

That takes me to the all-important issue of whether on the materials before it the lower Court exercised its discretion properly in entering summary judgment for Respondent. As correctly argued by appellants, what is required of a defendant opposing an application for summary judgment is to file a counter affidavit disclosing triable issues. A triable issue is a genuine issue which would preclude entry of summary judgment: see Ilorin East Local Government v. Alasinrin (2012) ALL FWLR (PT 645) 246 and Amede v. UBA (2008) 8 NWLR (PT 1090) 623 @ 662. At that stage, it is not necessary for the Court to decide whether the defence had been established, all that is required is whether the facts deposed to by the defence have disclosed a prima facie defence to the plaintiff/applicant’s action: see Okambah v. Sule (1990) LPELR-2422 (SC); (1990) 9-10 S.C. 47 @ 55 -56. Leave to defend ought to be given unless there is clearly no defence at all: see F.M.G. v. Sani (1990) 7 S.C. (PT 11) 89 @ 114 – 115, 119,

Here, Respondent’s main claim is its liquidated sum of ₦6,709,500.00 representing balance of goods it claims it supplied appellants on their demand and on a concluded contract which, according to it, appellants in breach of their contract refused to pay for. Appellants’ defence in their statement of defence and affidavit in support of their notice to defence averred that they were not indebted to it; that they did not even have any conclusive contract with it to accept all it supplied them; that their agreement with it was that they would only accept and pay for what was required by them while it retrieves the balance if any. That, they said, was what they did by paying it ₦4,925,500.00 as full payment for the goods they accepted, and it voluntarily accepted that amount as full payment as shown in its 28/4/2009 letter to it. Respondent’s answer to that was that it wrote its 28/4/2009 letter under undue influence from appellants. That letter from Respondent to appellants incidentally reads as follows:
STAR GLOBAL MARKETING LIMITED
(Where Global Operations are just the beginning)
Attention Professor Rafindadi
Chief

Medical Director,
Ahmadu Bello University Teaching Hospital
Zaria, Kaduna State
April 28th, 2009.
Re: Acceptance Letter
Dear Professor Rafindadi,
The management of Star Global Marketing Limited have agreed to accept the payment of N4,925,500.00 from your hospital which is the payment of some hospital disposable consumables delivery to your hospital by our company and we will arrange to pick up the remaining hospital disposal consumables from your hospital back to New York U.S.A once we receive the payment of N4,925,500.00. Please kindly advice your account dept. to wire the payment of N4,925,500.00 into our bank account today.
Thanks for your cooperation in this matter.
Mrs. Maggi Agada
Brooklyn New York U.S.A
Clearly, respondent’s admission of authoring and delivering of this letter to appellants and receipt of N4,925,500.00 payment from appellants shows a huge triable issue in the case making it necessary for the lower Court to refuse respondent’s application for summary judgment and order full trial on the pleadings already exchanged so that both parties can call oral evidence on these

conflicting pleas of whether or not that letter was written voluntarily by respondent. The assertion of respondent that appellants imposed undue influence on it in authoring that letter is one of fact which can only be established when both parties take the witness stand to lead oral evidence and be cross-examined on the said undue influence, the form it took and how it affected Respondent complaining of it. It is not something that can be decided by the Court or anybody for that matter by merely looking at the said letter. Where affidavits conflict on a material fact, credibility becomes an issue for which oral evidence must be taken to enable the Court decide for itself by watching the demeanour of witnesses to be called by parties to know who is lying and who in its opinion is speaking the truth. It does not even matter that none of the parties asked to be allowed to cross-examine any of the deponents or to call any witnesses. That is the position long settled by the apex Court in Falobi v. Falobi (1976) 9-10 S.C,; (1976) LPELR-1236(SC) and followed by a long line of cases too numerous to mention here. That point is now even codified in

Section 116 of the Evidence Act 2011 stating that:
S.116. When there are before the Court affidavits that are irreconcilably in conflict on crucial facts the Court shall for the purpose of the resolving the conflict arising, from the affidavit evidence, ask the Parties to proffer oral evidence as to such facts, and shall hear such oral evidence, or the deponents of the affidavits and such other witnesses as may be called by the parties.
That is not all; for there is also the additional issue of ₦4,000,000.00 claimed by Respondent outside the liquidated sum of ₦6,709,500.00 for balance of its goods. That claim of ₦4,000,000.00 is rather in the nature of general damages, meaning that Respondent must lead evidence to prove that it suffered that damage. It is not a claim that can be granted by way of summary judgment, same being un-liquidated damages. That is even assuming that such damages can be granted at all in a case of breach of contract.

The result of all that is that, this appeal must be allowed and is here allowed and the 30/07/2012 judgment of the High Court of Kaduna State, per Isah, J., is hereby set aside. In its stead, it is hereby ordered that

respondent’s application for summary judgment is refused and leave is here granted appellant to defend Suit No KDH/Z/97/2011 and the said suit put on the general cause List of the High Court of Kaduna State for trial on pleadings by another judge of that Court to be assigned by the Chief Judge of the State.
There shall be costs of ₦100,000.00 in favour of appellants against respondents.

SAIDU TANKO HUSSAINI, J.C.A.: My lord, Boloukuromo Moses Ugo, JCA availed me of a copy of the lead judgment prepared and delivered by him. I agree intoto with the reasoning and conclusion.

The procedure by way of Summary judgment, as under the undefended list; is unique, such that, the parties do not have to go all out into full trial whereas by the evidence (affidavit) placed before the Court, the defendant has no defence to it.
Invariably, a claim under the Summary Judgment procedure is based or founded on a sum or monies, more often then not, described as ‘liquidated’ sum agreed to by the parties. Where affidavit evidence in support of Motion for Summary Judgment depose to facts which lead to the conclusion that the defendant has no defence to

it, so be it. Such a claim does not admit of other claims of the sum which can only be described as a claim in the realm of general damages. Such a claim cannot be granted under the Summary Judgment procedure, as in this case on appeal. Hence the appeal has considerable merit and same is allowed. I also abide by the other orders as to cost contained in the lead judgment.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my learned brother, BOLOUKUROMO MOSES UGO, J.C.A, with the reasoning and conclusions of which I entirely agree. The facts of the case have been sufficiently stated in the leading judgment and therefore need no repetition. My lord had admirably dealt with all the issues that arise for determination, most especially the fact that where a defendant had filed an affidavit which discloses a defence on merit or a triable issue, the trial Court is duty bound to transfer the suit to the general cause list. I too allow the appeal and I abide by the consequential orders in the lead judgment, including the order as to cost.

Appearances:

Isiramen, Esq. with him, Abdulakeem Adu and S.K Yabo Esq. For Appellant(s)

No representation for Respondent. For Respondent(s)