G-CELL WIRELESS LTD & ANOR v. ZIN INVESTMENT LTD & ANOR
(2022)LCN/16705(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, January 14, 2022
CA/KN/191/2020
Before Our Lordships:
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
1. G-CELL WIRELESS LIMITED 2. USMAN ABUBAKAR GUMI APPELANT(S)
And
1. ZIN INVESTMENT LIMITED 2. ALHAJI ZUBAIRU BORODO RESPONDENT(S)
RATIO
THE CONDITIONS THAT MUST BE MET BEFORE AN ISSUE FOR DETEMINATION IN DETERMINATED IN AN APPELLATE COURT
The law is that an issue raised for determination in an appellate Court should be material; it must be such a proposition of law or fact or both so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the Court – Ugo Vs Obiekwe (1989) All NLR 566, Kalu Vs Odili (1992) 6 SCNJ 76, Ezekwesili Vs Agbapuonwu (2003) 9 NWLR (Pt 825) 337.
It is not every fact in dispute or indeed every ground of appeal that raises an issue for determination. The acid test is whether the legal consequences of that ground or fact as framed, if decided in favour of the appellant, will result in a verdict in his favour – Ibori Vs Agbi (2004) 6 NWLR (Pt 868) 78. An issue that is not necessary for determination, or which even if determined in favour of a party, may not end the controversy ought not to be formulated for determination on appeal for it may serve no purpose even if the complaint is upheld in favour of the appellant – Ehimare Vs Emhonyon (1985) 2 SC 49. When the determination of an issue in favour of the party who raised it will not affect the result of an appeal, the issue is of no value – Okereke Vs Nwankwo (2003) 9 NWLR (Pt 826) 592. PER ABIRU, J.C.A.
THE PRIMARY OBJECTIVE OF A SUMMARY JUDGEMENT PROCEDURE
The primary object of summary judgment procedure is to allow speedy disposition of a controversy without the need for trial – Nnabude Vs G N Godiscoy (W/A) Ltd (2010) 15 NWLR (Pt 1216) 365, Bona V Textile Ltd Vs Asaba Textile Mill Plc (2013) 2 NWLR (Pt 1338) 357.
Order 11 of the High Court of Kano State (Civil Procedure) Rules provides for summary judgment where it is clearly shown on the papers before the Court that the defendant has no good defence to a plaintiff’s claim. The whole purpose of the summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. A sham defence is an unreal, fake and deceitful defence. No amount of sophistry or technical pyrotechnics can launder a sham defence into a real defence to a plaintiff’s pleaded facts and verifying evidence. In other words, the summary judgment rules are specially made to help the Court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied – United Bank for Africa Plc Vs Jargaba (2007) 11 NWLR (Pt 1045) 247, University of Benin Vs Kraus Thompson Organization Ltd (2007) 14 NWLR (Pt 1055) 441, Ifeanyichukwu Trading Investment Ventures Ltd Vs Onyesom Community Bank Ltd (2015) 17 NWLR (Pt 1487) 1, Matab Oil & Gas Ltd Vs Fundquest Financial Services Ltd (2020) 17 NWLR (Pt 1752) 1. PER ABIRU, J.C.A.
CONDITION UPON WHICH A CLAIMANT WILL BE ENTITLED TO JUDGEMENT UNDER THE SUMMARY JUDGEMENT PROCEDURE
The summary judgment procedure was evolved by the rules of Court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiff’s claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the Court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled. Okoli Vs Morecab Finance (Nig) Ltd (2007) 14 NWLR (Pt 1057) 37, Samabey International Communications Ltd Vs Celtel Nigeria Limited (2013) LPELR-20758(CA). In other words, where there is no reasonable doubt on the efficacy of the claim of a claimant and the defendant does not disclose a plausible defence to the claim, the claimant is entitled to judgment under the summary judgment procedure – Torno Internazionale Nigeria Ltd Vs FSB International Bank Plc (2013) LPELR-22616(CA). The procedure is best suited for a liquidated money demand; that is a sum of money that is arithmetically ascertainable without further investigation – Maja Vs Samouris (2002) 7 NWLR (Pt 765) 78, African International Bank Plc Vs Packoplast Nigeria Ltd (2003) 1 NWLR (Pt 802) 502, A.T.S. & Sons Vs Ben Electronics Co. Nig. Ltd (2018) 17 NWLR (Pt 1647) 1, Nigeria Breweries Plc Vs National Union of Food Beverages and Tobacco Employees (2020) 7 NWLR (Pt 1724) 499. PER ABIRU, J.C.A.
CONDITIONS THAT MUST BE PRESENT BEFORE A DEFENDANT IS ALLOWED TO DEFEND HIS CASE IN A SUMMARY JUDGEMENT PROCEDURE
The Supreme Court has stated and restated what a defendant must show to be let in to defend under the summary judgment procedure and these are that:
i. The defence of the defendant must condescend upon particulars and as far as possible deal specifically with the plaintiff’s claim and should also clearly and concisely state what the defence is;
ii. A mere denial by the defendant of being indebted to the plaintiff is not enough, the defence should state why the defendant is not indebted in full or in part, and then state the true position;
iii. It is also not enough for the defendant to show a case of hardship, nor a mere inability to pay;
iv. In all cases the defendant must provide sufficient particulars to show that there is a bona fide defence;
v. Only defences on the merit are allowed; the defendant cannot rely on sham defence;
vi. Where the defendant raises legal objection, the fact and the point of law arising therefrom must be clearly and adequately stated.
See the cases of Nishizawa Vs Jethwani (1984) 12 SC 234, Macaulay Vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt 144) 283, Federal Military Government of Nigeria Vs Sani (1990) 5 NWLR (Pt 147) 688, Sanusi Brothers (Nigeria) Ltd Vs Cotia Commercio Exportacao E Importacao SA (2000) 11 NWLR (Pt 679) 566, Wema Securities & Finance Plc Vs Nigeria Agricultural Insurance Corp (2015) 16 NWLR (Pt 1484) 93, Nigeria Breweries Plc Vs National Union of Food Beverages and Tobacco Employees (2020) 7 NWLR (Pt 1724) 499. PER ABIRU, J.C.A.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kano State delivered in Suit No K/362/2019 by the Chief Judge, Honorable Justice Nura Sagir Umar on the 24th of September, 2019.
The Respondents were the claimants before the lower Court and the Appellants and one Abdallah Suleiman Katsina were the first to the third defendants respectively. The claims of the Respondents were for:
i. An order of the Court directing the Appellants and Abdallah Suleiman Katsina to pay to the Respondents the sum of N30 Million being the sum paid for the supply of cell phones and recharge cards to be delivered to the Respondents in Kano and which was never supplied.
ii. The sum of N3 Million being the cost of legal fees paid by the Respondents to their Solicitors, B. Y. Gambo & Co.
iii. Court interest at the rate of 10% from the date of judgment till the judgment sum is liquidated.
The case of the Respondents on the accompanying statement of claim was that the second Appellant was the Managing Director and Chief Executive Officer of the first Appellant and that the said Abdallah Suleiman Katsina was a business partner of the Appellants. It was their case that sometime in 2009, the said Abdallah Suleiman Katsina approached the second Respondent with a proposal to invest money in the business of the first Appellant and that, despite his initial misgivings, the second Appellant, by reason of the pressure from Abdallah Suleiman Katsina, agreed to the proposal. It was their case that on the 8th of November, 2010, they paid the sum of N30 Million into the account of the Appellants for the supply of cell phones and recharge cards to be delivered to them in Kano and that a contract document was thereafter executed between the first Respondent and the first Appellant.
It was the case of the Respondents that they thereafter heard nothing from the Appellants and Abdallah Suleiman Katsina until some years thereafter when the second Respondent met Abdallah Suleiman Katsina on a flight from Abuja to Kano and caused him to be arrested by the Police upon their arrival in Kano. It was their case that Abdallah Suleiman Katsina was detained by the Police until the next day when the second Appellant showed up, wrote a statement and gave an undertaking to repay the N30 Million of the Respondents. It was their case that the second Appellant failed to honor the undertaking and the Appellants failed to supply the items paid for and consequent on which they caused their Counsel to address a letter of demand to Appellants and which letter was ignored. It was their case that the claim of the Respondents is for a liquidated money demand and that the Appellants and Abdallah Suleiman Katsina had no defence to the claim.
The writ of summons and the statement of claim were accompanied by the list of witnesses, written deposition of witnesses on oath and a list of documents to be relied upon at trial. The Respondents also filed a motion for summary judgment along with the originating process and the motion was supported by an affidavit in the terms of the case of the Respondents on the pleadings and to which was attached documents and by a written address of arguments.
Upon being served with the processes, the Appellants, as first and second defendants, and Abdallah Suleiman Katsina, as the third defendant, filed the following processes (i) a joint memorandum of appearance, (ii) a notice of preliminary objection challenging the competence of the action on the grounds of statute bar and misjoinder of the second Appellant and Abdallah Suleiman Katsina, (iii) a joint statement of defence accompanied by list of witnesses and written deposition of witness on oath, (iv) a notice of intention to defend supported by an affidavit of facts with exhibits, and (v) a written address in response to the motion for summary judgment. Counsel to the Respondents filed a reply address to the notice of preliminary objection. The lower Court took arguments on the notice of preliminary objection but it declined delivering a Ruling thereon and said that it would include his decision on same in the Ruling to be delivered upon the hearing of the Respondents’ motion for summary judgment and it adjourned the motion for hearing.
Thereafter, Abdallah Suleiman Katsina, as the third defendant, apparently briefed a new Counsel and he caused to be filed a motion disentangling himself from the Appellants and from all the processes filed by the former Counsel and the motion was granted. The said Abdallah Suleiman Katsina caused to be filed a statement of defence with a counterclaim and this was accompanied by a list of witnesses, written deposition of witness on oath and a list of documents, as well as a counter affidavit to the motion for summary judgment accompanied by a written address. The Respondents were to later discontinue the action against Abdallah Suleiman Katsina as third defendant and the case against him was dismissed by the lower Court. There ended the involvement of Abdallah Suleiman Katsina in the action.
The Appellants filed an amended statement of defence with a counterclaim and this was accompanied by a fresh list of witnesses, written deposition of witness on oath and list of witnesses and a joint counter affidavit to the Respondents motion for summary judgment accompanied by a written address. In their response in both the joint statement of defence and joint counter affidavit, the Appellants told a long story of how the first Appellant obtained licence from the Nigerian Telecommunications Commission to carry on business as Digital Mobile Telecommunications Service provider and established sites in Jigawa, Kano, Katsina and Kaduna States. They admitted that the first Respondent and first Appellant entered into an agreement for the supply of cell phones and recharge cards and that the Respondents paid the sum of N30 Million in furtherance of the agreement, but that the payment was made to the first Appellant and not to the second Appellant and that the second Appellant signed the contract in his official capacity as the Chief Executive Officer of the first Appellant.
It was their case that the first Appellant fully performed its part of the agreement and that it was the Respondents that failed to perform theirs and that by the terms of the agreement, the Respondents were to pay a deposit of N60 Million within two weeks of signing of the contract, but that they paid only N30 Million. It was their case that despite the failure of the Respondents to pay the balance, the first Appellant procured the cell phones and recharge cards as ordered by the Respondents and took steps to deliver them but the Respondents refused to take delivery of the items and that the items were in the store of the first Appellant with attendant costs being incurred. They admitted that the second Appellant gave an undertaking to repay the N30 Million to the Respondents, but it was their case that the second Appellant did so in his official capacity and not in his personal capacity.
It was the case of the Appellants that it was incorrect that they vanished after the payment of N30 Million by the Respondents and that the first Respondent caused a letter to be addressed to the first Appellant in October 2014 demanding for the sum of N50 million, in repayment of the N30 Million. The Appellants thereafter averred facts on what they considered to amount to fraud, malice and forgery perpetrated by the Respondents against Abdallah Suleiman Katsina, but not against either of them. It was their case that they had a valid defence to the claims of the Respondents and that the claims of the Respondents were not liquidated money demands and that the claims were statute barred because the action was filed beyond the six years limitation period allowed by law. It was their case that the contract executed between the first Respondent and the first Appellant contained an arbitration clause in its Clause 5 and that the Respondents failed to take advantage of the clause before commencing the present action. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
It was the case of the Appellants that the Respondents were under obligation to pay the balance of N30 Million to make up the initial deposit of N60 Million contained in the contract document and that they were also entitled to the costs of warehousing the cell phones and the recharge cards they purchased for the Respondents from December 2010 at a monthly rate of N125,000.00 per month. They counterclaimed thus:
i. An order of the Court dismissing the claims of the Respondents for lacking in merit.
ii. A declaration that the contract forming the subject matter of this suit is between the first Respondent and the first Appellant only.
iii. A declaration that the failure of the first Respondent to pay to the first Appellant the balance of the sum of N30 Million within two weeks after signing the contract is a breach of a fundamental term of the contract and the first Appellant is entitled to damages.
iv. A declaration that the failure of the first Respondent to accept delivery of the CDMA Mobile phones and recharge cards from the first Appellant is a breach of a fundamental term of the contract and the first Appellant is entitled to damages.
v. An order directing the first Respondent to pay to the first Appellant the sum of N13.5 Million as the cost of warehousing the CDMA Mobile phones and recharge cards at Plot 384, JF Kennedy Street, Asokoro, Satellite of the Federal Capital, Abuja at the rate of N125,000.00 per month from December 2010 to December 2019.
vi. An order directing the first Respondent to pay to the first Appellant the sum of N125,000.00 as the cost of warehousing the CDMA Mobile phones and recharge cards at Asokoro, FCT-Abuja per month from January, 2020 until judgment is delivered.
vii. An order mandating the first Respondent to accept delivery of the CDMA Mobile phones and recharge cards it caused the first Appellant to purchase and to perform the contract.
viii. An order awarding the sum of N2 Million in favour of the Appellants against the second Respondent for being a busy body in this suit.
ix. An order awarding the sum of N5 Million in favour of the Appellants against the Respondents for wrongly joining the Appellants in this suit.
The records of appeal show that the lower Court heard arguments on the motion of the Respondents for summary judgment and delivered a Ruling granting the application and entering judgment in favour of the Respondents as claimed against the Appellants. In the Ruling, the lower Court focused on the letter of undertaking given by the Appellants to repay the sum of N30 Million paid to them back to the Respondents and it thereafter referred to the provisions of Order 19 Rule 1 of the Kano State High Court Rules 2014 on admissions made by a party to a suit, of Section 169 of the Evidence Act on estoppel by representation and of Order 11 Rules 1 and 4 of the High Court of Kano State Rules 2014 on the summary judgment procedure and it deliberated further thus:
“In this respect, I have carefully perused the issues raised in the 1st and 2nd defendants’ joint counter affidavit opposing the application for summary judgment, including the annexure exhibits attached and in fact, some of the exhibits attached in support the plaintiffs’ case. For example Exhibit D which is a similar document to the above quoted exhibit D which is emanating from the 1st and 2nd defendants an undertaking by the second defendant to the second plaintiff promising to repay the sum of N30,000,000 by 31st December, 2011.
Lastly, I have carefully perused all the submissions of Bashir Ibrahim, the learned counsel for the 1st and 2nd defendants contained in his written address together with the 1st and 2nd defendants joint amended statement of defence and counterclaim and I am of the view that this suit ought not to be transferred to the general cause list as to do so would defeat the provisions of Order 11 Rule 5(2) and 6 of the Kano State High Court Rules 2014.
Having said that, I therefore enter judgment in favour of the plaintiffs against the 1st and 2nd defendants jointly and severally in the sum of N30,000,000 (Thirty Million Naira) only per the provisions of Order 11 Rule 5(2) and 6 of the Kano State High Court Rules 2014. The defendants, 1st and 2nd defendants, shall pay Court rate interest of 10% from 25th of September, 2020 until the whole judgment sum is liquidated.
The counter claim of the 1st and 2nd defendants on perusal only raises a dust of legal technicalities which have been rendered nugatory by the aforementioned Exhibit D above quoted undertaking … I have carefully perused the notice of preliminary objection dated 14/12/2019 and it is hereby dismissed for lacking any merit.”
The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal dated the 5th of October, 2020 and containing eight grounds of appeal against it. In arguing the appeal before this Court, Counsel to the Appellants filed a brief of arguments dated the 6th of November, 2020 and filed same date while Counsel to the Respondents responded by a brief of arguments dated and filed on the 23rd of November, 2020. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their submissions on the appeal.
Counsel to the Appellants distilled four issues for determination in the appeal and these were:
i. Whether the lower Court was right when it entered judgment summarily without evaluating the contract under which the Respondents claimed, the Respondents having failed to place before the lower Court such contract.
ii. Whether the lower Court was right when it held that the Appellants have admitted the Respondents’ claim under Order 19 Rule 1 of the Kano State High Court Rules, 2014.
iii. Whether the lower Court was right when it entered judgment summarily despite the issues raised by the Appellants including full performance, lack of cause of action, forgery, failure to comply with arbitration clause and counterclaim.
iv. Whether the lower Court was right in dismissing the Appellants’ preliminary objection without proffering any reason when the suit was filed nine years after the alleged cause of action arose.
Counsel to the Respondents adopted the four issues for determination as formulated by Counsel to the Appellants. Now, an issue for determination in an appeal is said to be a combination of facts and circumstances including the law applicable thereto which is so crucial that if it is decided one way or the other, will affect the fate of the appeal. It is a point which is so critical that if it is decided in favour of a party, such a party is entitled to win the appeal – Okoye Vs Nigerian Construction and Furniture Co Ltd (1991) 6 NWLR (Pt 199) 501, G. Chitex Industries Ltd Vs Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (Pt 945) 392, Ali Vs Osakwe (2011) 7 NWLR (Pt 1245) 68, Nadabo Vs Dabai (2011) 7 NWLR (Pt 1245) 155.
The law is that an issue raised for determination in an appellate Court should be material; it must be such a proposition of law or fact or both so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the Court – Ugo Vs Obiekwe (1989) All NLR 566, Kalu Vs Odili (1992) 6 SCNJ 76, Ezekwesili Vs Agbapuonwu (2003) 9 NWLR (Pt 825) 337.
It is not every fact in dispute or indeed every ground of appeal that raises an issue for determination. The acid test is whether the legal consequences of that ground or fact as framed, if decided in favour of the appellant, will result in a verdict in his favour – Ibori Vs Agbi (2004) 6 NWLR (Pt 868) 78. An issue that is not necessary for determination, or which even if determined in favour of a party, may not end the controversy ought not to be formulated for determination on appeal for it may serve no purpose even if the complaint is upheld in favour of the appellant – Ehimare Vs Emhonyon (1985) 2 SC 49. When the determination of an issue in favour of the party who raised it will not affect the result of an appeal, the issue is of no value – Okereke Vs Nwankwo (2003) 9 NWLR (Pt 826) 592.
Applying these principles to the four issues for determination formulated by Counsel to the parties in this appeal, it is obvious that the first and second issues for determination formulated by Counsel to the parties are of no value in this appeal. It is elementary that the cause of action of a claimant is deciphered and determined by a consideration of only the reliefs sought and the facts averred in the writ of summons and statement of claim, and not by reference to the statement of defence – Nwora Vs Nwabueze (2019) 7 NWLR (Pt 1670) 1, Oko Vs Attorney General, Ebonyi State (2021) 14 NWLR (Pt 1795) 63. Reading through the claims of the Respondents and the contents of the statement of claim, it is clear that their cause of action was for refund of money had and received for a consideration that failed. The cause of action was really not predicated upon the said contract. They averred that the money, N30 Million, was paid on the 8th of November, 2010, before the contract was executed on 13th of December, 2010. Moreover, the complete contract formed part of the documents exhibited by the Appellants and by Abdallah Suleiman Katsina, sued as the third defendant. The first issue for determination formulated by Counsel to the parties is thus irrelevant.
A read through the records of appeal shows that the Appellants motion for summary judgment was filed pursuant to Order 11 of High Court of Kano State (Civil Procedure) Rules 2014. A read through the judgment appealed against shows that it was pursuant to the provisions of Order 11 of High Court of Kano State (Civil Procedure) Rules 2014 that the lower Court exercised its discretion to enter judgment in favour of the Respondents. The reference made by the lower Court to Order 19 Rule 1 of the High Court of Kano State (Civil Procedure) Rules 2014 in the judgment was obviously a passing comment; an obiter dictum. It is settled law that grounds of appeal and issues for determination directed at a passing comment made by a lower Court are of no value in an appeal –CPL Industries Ltd Vs Union Homes Savings & Loans Ltd (2021) 9 NWLR (Pt 1781) 201, Haruna Vs Abuja Investment & Property Development Co Ltd (2021) 15 NWLR (Pt 1798) 133, Nwagbara Vs Jadcom Ltd (2021) 16 NWLR (Pt 1802) 327. The second issue for determination formulated by Counsel to the parties cannot thus have any effect on the outcome of this appeal.
This Court hereby discountenances the first and second issues for determination formulated by Counsel to the parties and the respective arguments canvassed by the parties thereon in their briefs of arguments. Reading through the records of appeal, particularly the case of the parties on the pleadings and the depositions in the affidavit and counter affidavit on the motion for summary judgment together with the contents of the exhibits attached, the judgment of the lower Court and the notice of appeal, as well as the arguments of Counsel in their respective briefs of arguments, this Court is of the view that there is only one issue for determination in the appeal. This is:
Whether, on the peculiar facts and circumstances of this case, the lower Court was correct when it entered summary judgment in favour of the Respondents.
This appeal will be resolved on this sole issue for determination and all the relevant arguments canvassed by the Counsel to the parties in their respective briefs of arguments will be considered under this issue for determination.
Counsel to the Appellants contended that it is settled law that the provisions of Section 36(1) of the 1999 Constitution and the rules of natural justice mandate the Court to consider all the defences raised by a defendant to an action no matter how weak it may appear and he referred to the case of Julius Berger (Nig) Plc Vs T.R.C.B Ltd (2019) 5 NWLR (Pt 1665) 219. Counsel stated that the lower Court failed to evaluate any of issues raised by the Appellants in their response to the claims of the Respondents or the submissions of their Counsel and that the Appellants did not admit the claims of the Respondents as wrongly found by the lower Court.
Counsel stated that the Appellants raised the issues of (i) the forgery of the signature of Abdallah Suleiman Katsina, sued as the third defendant in the action; (ii) deliberate failure of the Respondents to place the complete contract before the Court; (iii) lack of cause of action against the second Appellant; (iv) full performance of the contract on the part of the Appellants and failure of the Respondents to accept delivery of the mobile phones and recharge cards; and (v) failure on the part of the Respondents to comply with the arbitration clause in the agreement. Counsel stated that the Appellants also counterclaimed for breach of contract and costs of warehousing the phones and recharge cards and that the lower Court did not peruse the counterclaim properly before holding that it only raised a dust of legal technicalities.
Counsel stated that the summary judgment procedure was not aimed at shutting out a defendant and that the Appellants filed all the response processes in satisfaction of the provisions of Order 11 Rule 4 of the High Court of Kano State Rules 2014 and was entitled to the exercise of discretion by the lower Court by being given leave to defend the action and that this matter ought to have been transferred to the general cause list and he referred to the case of Kabo Air Ltd Vs Mumi Bureau de Change Ltd (2020) 4 NWLR (Pt 1715) 488. Counsel stated that also very importantly is the fact that the Respondents did not file a reply to contend against all the issues raised by the Appellants in their processes and they are deemed to have admitted the issues.
Counsel stated further that the Appellants filed a preliminary objection wherein they raised two issues of lack of jurisdiction on the part of the lower Court to entertain the claims of the Respondents on the ground of statute bar and lack of cause of action against the second Appellant. Counsel stated that preliminary objection was heard on the merits and that the lower Court merely dismissed same as lacking in merit without proffering any reason for the decision. Counsel stated that Courts of law are obligated to consider the issues raised by parties, state the reasons for their decisions and support same with authorities in their judgments and he referred to the case of Oyedele Vs State (2019) 6 NWLR (Pt 1667) 74 on the qualities of a good judgment.
Counsel stated that looking at averments in the statement of claim of the Respondents and the exhibits attached to the motion for summary judgment, the Respondents’ cause of action arose in December, 2010 and that this present action was commenced nine years later and that this was beyond the six years limitation period allowed by Section 15 of the Limitation of Action Act 1881. a statute of general application applicable in Kano State. Counsel stated the Statute removed the right of the Respondents to enforce their grievance against the Appellants and that the fact that the Appellants subsequently gave an undertaking to pay up the money did not prevent the limitation period from elapsing and neither did the letter of demand issued in 2019 revive the right of action of the Respondents and he referred to the case of Etiemone Vs Apina (2019) 15 NWLR (Pt 1696) 557.
Counsel stated that the contract forming the subject matter of the suit was entered into between the first Respondent and the first Appellant and that both of them are corporate entities and that they are thus the only proper parties to the suit and that the joinder of the second Appellant was improper and he referred to the cases of Julius Berger (Nig) Plc Vs T.R.C.B Ltd (2019) 5 NWLR (Pt 1665) 219 and Integrated Finance Ltd Vs NPA (2019) 17 NWLR (Pt 1700) 131. Counsel urged and prayed the Court to resolve the issue for determination in favour of the Appellants and to allow the appeal, set aside the judgment of the lower Court and to dismiss the claims of the Respondents or, alternatively, grant the Appellants leave to defend the action.
In his response arguments, Counsel to the Respondents cited and quoted several case law authorities, including Nwarie Vs Adakwa (2016) LPELR-41600(CA), UBA Vs Jargaba (2007) LPELR-3399(SC) and Massken (Nig) Ltd Vs Amaka (2017) LPELR-42360(SC), on the essence and purpose of the summary judgment procedure and on what constitutes a defence on the merits to abort judgment being entered under the procedure. Counsel stated it was clear from the processes filed that the Appellants admitted collecting the sum of N30 Million from the Respondents and that the counterclaim thereafter was unhelpful and that it amounted to approbating and reprobating and which a party is not allowed to do and he referred to the cases of Ila Ent Ltd Vs Umar Ali and Co Ltd (2013) LPELR-21404(CA) and Akinbiyi Vs Lagos Island Local Government Council (2012) LPELR-19839(CA).
Counsel reproduced the entire deliberations of the lower Court on the motion for summary judgment and stated that in an action for repayment of money, the defences available to a defendant are only two (a) that the defendant had refunded the entire money; (b) that he never collected the money in the first place and he referred to the case of Okoli Vs Morecab Finance (Nig) Ltd (2007) All FWLR (Pt 369) 1164. Counsel stated that the issue of forgery alluded to by the Appellants was in respect of the signature of Abdallah Suleiman Katsina, sued as the third defendant in the action, and had nothing to do with the Appellants. Counsel stated that the complete copy of the contract document was part of the processes before the lower Court and that allegation that the complete contract document was not produced is incorrect and that the Respondents breached no obligation therein as the contract did not place any obligation on them. Counsel again cited and quoted from case law authorities on the essence of the summary judgment procedure. Counsel stated that the issue of arbitration clause was a non-starter as the presence of such a clause did not forbid the Respondents from commencing the present action to seek for a refund of their money and he referred to the case of Onyekwuluje Vs Benue State Government (2015) LPELR-24780(SC).
Counsel stated that the arguments of Counsel to the Appellants on the claims of the Respondent being statute barred was misplaced because the Respondents’ cause of action arose in September 2019, when a demand was made on the Appellants for the repayment of the N30 Million, and not before and he referred to the case of Ishola Vs S. G. Bank (1997) 2 SCNJ 19. Counsel referred to several case law authorties, including Okafor Vs Bende Divisional Union, Jos Branch (2017) 5 NWLR (Pt 1559) 385 and Mulima Vs Usman (2014) 16 NWLR (Pt 1432) 160, on the meaning and constituents of cause of action and stated that it is only to the statement of claim that the Court will look at in determining the cause of action and as to when an action becomes statute barred and he referred to the cases of G.O.C. Vs Adio (1995) 2 NWLR (Pt 379) 570 and Iweka Vs SCOA (Nig) Ltd (2000) 7 NWLR (Pt 664) 325.
Counsel urged the Court to resolve the issue for determination in favour of the Respondents and he prayed that the Court finds no merit in the appeal and to dismiss same and affirm the judgment of the lower Court.
Now, judgment was entered by the lower Court on the Respondents’ motion for summary judgment filed pursuant to the provisions of Order 11 of the High Court of Kano State (Civil Procedure) Rules. The term summary judgment denotes a judgment usually granted by Court on a claim about which there is no genuine issue of material fact, and upon which the claimant is entitled to prevail as a matter of law. Primarily, the Court takes into consideration the pleadings, the motions, and where necessary, additional evidence adduced by the parties to determine whether or not there is a genuine issue of material fact, rather than one of law.
The primary object of summary judgment procedure is to allow speedy disposition of a controversy without the need for trial – Nnabude Vs G N Godiscoy (W/A) Ltd (2010) 15 NWLR (Pt 1216) 365, Bona V Textile Ltd Vs Asaba Textile Mill Plc (2013) 2 NWLR (Pt 1338) 357.
Order 11 of the High Court of Kano State (Civil Procedure) Rules provides for summary judgment where it is clearly shown on the papers before the Court that the defendant has no good defence to a plaintiff’s claim. The whole purpose of the summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. A sham defence is an unreal, fake and deceitful defence. No amount of sophistry or technical pyrotechnics can launder a sham defence into a real defence to a plaintiff’s pleaded facts and verifying evidence. In other words, the summary judgment rules are specially made to help the Court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied – United Bank for Africa Plc Vs Jargaba (2007) 11 NWLR (Pt 1045) 247, University of Benin Vs Kraus Thompson Organization Ltd (2007) 14 NWLR (Pt 1055) 441, Ifeanyichukwu Trading Investment Ventures Ltd Vs Onyesom Community Bank Ltd (2015) 17 NWLR (Pt 1487) 1, Matab Oil & Gas Ltd Vs Fundquest Financial Services Ltd (2020) 17 NWLR (Pt 1752) 1.
Order 11 Rule 1 of the High Court of Kano State (Civil Procedure) Rules states that where a claimant reasonably believes that the defendant has no defence to his claim, he shall file with the originating process, the statement of claim, the exhibits, the depositions of witnesses and an application for summary judgment and the said application shall be supported by an affidavit stating the grounds and a written brief in respect thereof. Order 11 Rule 4 provides that a defendant who is served with all the processes referred to in Rule 1 shall not later than the time prescribed for defence file: (i) his statement of defence; (ii) deposition of witnesses; (iii) exhibits to be used in his defence; and (iv) a written brief in reply to the plaintiff’s application for summary judgment. Order 11 Rule 5 (1) stipulates that where it appears to a Judge that a defendant has a good defence and ought to be permitted to defend the claim, he may be granted leave to defend. Order 11 Rule 5 (2) states that where it appears to a Judge that the defendant has no good defence, the Judge may thereupon enter judgment for a claimant – The Registered Trustees of Fansum Foundations Vs Partners for Development (2021) 11 NWLR (Pt 1787) 388.
The summary judgment procedure was evolved by the rules of Court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiff’s claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the Court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled. Okoli Vs Morecab Finance (Nig) Ltd (2007) 14 NWLR (Pt 1057) 37, Samabey International Communications Ltd Vs Celtel Nigeria Limited (2013) LPELR-20758(CA). In other words, where there is no reasonable doubt on the efficacy of the claim of a claimant and the defendant does not disclose a plausible defence to the claim, the claimant is entitled to judgment under the summary judgment procedure – Torno Internazionale Nigeria Ltd Vs FSB International Bank Plc (2013) LPELR-22616(CA). The procedure is best suited for a liquidated money demand; that is a sum of money that is arithmetically ascertainable without further investigation – Maja Vs Samouris (2002) 7 NWLR (Pt 765) 78, African International Bank Plc Vs Packoplast Nigeria Ltd (2003) 1 NWLR (Pt 802) 502, A.T.S. & Sons Vs Ben Electronics Co. Nig. Ltd (2018) 17 NWLR (Pt 1647) 1, Nigeria Breweries Plc Vs National Union of Food Beverages and Tobacco Employees (2020) 7 NWLR (Pt 1724) 499.
Now, what the provisions of Order 11 of the High Court of Kano State Rules do is that where a claimant applies for judgment under the summary judgment procedure and the case of the plaintiff is suited for the procedure, the burden is put on a defendant to satisfy a trial Court that he has a good defence, or to disclose other facts entitling him to defend, otherwise judgment would be entered for the claimant. The Supreme Court has stated and restated what a defendant must show to be let in to defend under the summary judgment procedure and these are that:
i. The defence of the defendant must condescend upon particulars and as far as possible deal specifically with the plaintiff’s claim and should also clearly and concisely state what the defence is;
ii. A mere denial by the defendant of being indebted to the plaintiff is not enough, the defence should state why the defendant is not indebted in full or in part, and then state the true position;
iii. It is also not enough for the defendant to show a case of hardship, nor a mere inability to pay;
iv. In all cases the defendant must provide sufficient particulars to show that there is a bona fide defence;
v. Only defences on the merit are allowed; the defendant cannot rely on sham defence;
vi. Where the defendant raises legal objection, the fact and the point of law arising therefrom must be clearly and adequately stated.
See the cases of Nishizawa Vs Jethwani (1984) 12 SC 234, Macaulay Vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt 144) 283, Federal Military Government of Nigeria Vs Sani (1990) 5 NWLR (Pt 147) 688, Sanusi Brothers (Nigeria) Ltd Vs Cotia Commercio Exportacao E Importacao SA (2000) 11 NWLR (Pt 679) 566, Wema Securities & Finance Plc Vs Nigeria Agricultural Insurance Corp (2015) 16 NWLR (Pt 1484) 93, Nigeria Breweries Plc Vs National Union of Food Beverages and Tobacco Employees (2020) 7 NWLR (Pt 1724) 499.
In the case, The Estate of Olusola Popoola Vs Access Bank Plc (2020) 16 NWLR (Pt 1751) 539, this Court explained thus: “The purpose of the summary judgment procedure is to allow for the disposal of cases which are not contested and where it is inexpedient to allow the defendant who has no defence to waste the time of the Court. In a summary judgment procedure, the defendant has a duty in law to establish facts in such a manner that will meet the case of the claimant. A defendant’s affidavit must show that the defence he is raising is particularized and as much as possible deal with the specifics and state clearly and concisely what the defence is and what facts are relied on as supporting the position taken. It is his responsibility to raise a triable issue in the affidavit seeking to defend the claim. The defence must be a bona fide or good defence or raise a triable issue and not a sham or spurious defence. The mere filing of an affidavit that does not answer the case of the claimant will not stand to sway the Court into allowing the defendant defend the claim.”
The claim of the Respondents in the instant case was for a liquidated money demand; the sum of N30 Million paid in November, 2010 to the Appellants for the supply of mobile phones and recharge cards that the Appellants never supplied. The Appellants admitted receiving the sum of N30 Million from the Respondents for the purpose stated. It was the case of the Respondents that they heard nothing from the Appellants after the payment of the N30 Million and that they involved the Police and whereupon the Appellants gave them an undertaking dated the 17th of November, 2011 to repay them the N30 Million on or before 31st of December, 2011. The undertaking, Exhibit D to the motion for summary judgment read thus:
“We, G-Cell Wireless Ltd have promised to pay Alh Zubairu Borodo the sum of N30,000,000 (Thirty Million Naira) which represents his money that he has deposited with us for service provider agreement on or before the 31st of December, 2011 unfailingly which he has deposited since November, 2010.”
The undertaking was signed by the second Appellant, as Chief Executive Officer, and by one Ibrahim Gumi, as Director. The Appellants admitted giving the undertaking. It is settled that an admitted fact ceases to be in issue and it is deemed established – Eweje Vs O.M. Oil Industries Ltd (2021) 4 NWLR (Pt 1765) 117, Skymit Motors Ltd Vs United Bank for Africa Plc (2021) 5 NWL (Pt 1768) 123, Passco International Ltd Vs Unity Bank Plc (2021) 7 NWLR (Pt 1775) 224, Central Bank of Nigeria Vs Dinneh (2021) 15 NWLR (Pt 1798) 91, Abimbola Vs State (2021) 17 NWLR (Pt 1806) 399.
Additionally, it was the case of the Respondent that they caused their Counsel to address a letter of demand to the Appellants dated the 9th of September, 2019 requesting for the payment of the N30 Million, Exhibit E to the motion for judgment. The Appellants did not contest receiving the letter and they admitted receiving an earlier letter from the Respondents dated the 20th of October, 2014 demanding for the refund of N50 Million instead of the N30 Million deposited with them; the letter was Exhibit GUA 20 to the counter affidavit of the Appellants. The Appellants did not respond to either of these letters. It is trite law that where a party fails to respond to a business letter which by the nature of its contents requires a response or a refutal of some sort, the party will be deemed to have admitted the contents of the letter – Gwani Vs Ebule (1990) 5 NWLR (Pt 149) 201, Trade Bank Plc Vs Chami (2003) 13 NWLR (Pt 836) 158, Zenon Petrol & Gas Vs Idrisiyya Ltd (2006) 8 NWLR (Pt 982) 221, Mekwunye Vs Imoukhuede (2019) 13 NWLR (Pt 1690) 439, Alhaji Isiyaku Yakubu Enterprises Ltd Vs Teru (2020) 16 NWLR (Pt 1751) 505, Thompecotan & Sons (Nig) Ltd Vs Jos South Local Government Council (2021) 4 NWLR (Pt 1766) 277. The Appellants thus admitted in writing and by conduct the receipt of the payment of N30 Million to them by the Respondents. There was no doubt about the efficacy of the claim of the Respondents for the sum of N30 Million.
In putting forward a defence to the claim, the Appellants canvassed (i) the forgery of the signature of Abdallah Suleiman Katsina, sued as the third defendant in the action; (ii) the deliberate failure of the Respondents to place the complete contract before the Court; (iii) lack of cause of action against the second Appellant; (iv) full performance of the contract on the part of the Appellants and failure of the Respondents to accept delivery of the mobile phones and recharge cards; and (v) failure on the part of the Respondents to comply with the arbitration clause in the agreement.
It is pure common sense, in the circumstances of this case, that the issue of the alleged forgery of the signature of Abdallah Suleiman Katsina, sued as the third defendant in the action, cannot constitute a viable defence in favour of the Appellants, particularly more so as the Respondents discontinued the action against the said Abdallah Suleiman Katsina. It is also obvious logic that the alleged deliberate failure of the Respondents to place the complete contract before the Court cannot constitute a possible defence because the completed contract was exhibited as Exhibit AS5 to the counter affidavit of Abdallah Suleiman Katsina, as the third defendant in the action, and as Exhibit GUA 3 to the counter affidavit of the Appellants. So it is incorrect that the complete contract was not placed before the lower Court.
The case made out by the Appellants on the question of lack of cause of action against the second Appellant is that the N30 Million was paid by the first Respondent to the account of the first Appellant and not to the account of the second Appellant. The Appellants accepted that the second Appellant was the Chief Executive Officer and alter ego of the first Appellant and did not contend that the second Appellant was not the person in total control of the accounts of the first Appellant. It was their case that the said contract was entered into between the first Respondent and the first Appellant and that the second Appellant only signed same as the Chief Executive Officer of the first Appellant. They admitted that the letter of undertaking to repay the sum of N30 Million to the Respondents, Exhibit D, was authored by the second Appellant, but it was their case that he did so as the Chief Executive Officer of the first Appellant.
Now, a look at the letter of undertaking, Exhibit D, shows that it was signed by the second Appellant, Usman Abubakar Gumi, as Chief Executive Officer and one Ibrahim Gumi, as Director. The similarity in the names, when taken along with facts of the case, suggests that the first Appellant is indeed a one-man business, controlled and managed by the second Appellant, with his family members as directors. The law is that in such circumstances the Courts will treat the company as a mere façade set up to blur the face of its directing mind and will not allow the alter ego of the company to use the veil of incorporation to avoid his obligations – Gilford Motors Co. Ltd Vs Horne (1933) Ch. 935, Re Bugle Press Ltd (1941) Ch. 270, Jones Vs Lipman (1962) 1 WLR 822, Alade Vs Alic (Nig) Ltd (2010) 19 NWLR (Pt 1226) 111 at 142, Tafida Vs Garba (2013) LPELR-22076(CA), Bell Atlantic Telecommunications Ltd Vs Ndon (2018) LPELR-44431(CA). In Adeyemi Vs LanBaker (Nig) Ltd (2000) 7 NWLR (Pt 663) 33, this Court made the point thus:
“There is nothing sacrosanct about the veil of incorporation of a company. Thus, if it is discovered from the materials before the Court that a company is the creature of a biological person be he a managing director or a director and that the company is a device or sham or mask which he holds before his face in an attempt to avoid recognition by the eyes of equity, the Court must be ready and willing to open the veil of incorporation to see the characters behind the company in order to do justice.”
The attempt by the second Appellant in the circumstances to use the veil of the incorporation of the first Appellant to evade liability for the sum of N30 Million he collected from the Respondents in the name of the first Appellant cannot constitute a plausible defence to the claims of the Respondents.
The Appellants also raised the issue of full performance of the contract on the part of the Appellants and failure of the Respondents to accept delivery of the mobile phones and recharge cards and it was on these assertions that they predicated their counterclaim. This issue was not raised in the initial statement of defence filed by the Appellants and it was raised for the first time in the amended statement of defence, along with the counterclaim. It is obvious that the facts in support of the issue and the counterclaim are mere afterthoughts. It was not raised at the time the Appellants admitted receiving N30 Million from the Respondents and gave an undertaking to repay the money on the ground that the purpose for which the money was paid had failed. It was not raised when the Appellants received the letters of demand for the repayment of the N30 Million written by the Respondents in October, 2014 and September, 2019. The issue as raised and the counterclaim are incongruous with the admission of liability by the Appellants in their letter of undertaking. As rightly stated by Counsel to the Respondents, they amount to the Appellants approbating and reprobating. A party is not allowed to approbate and reprobate – Thomas Wyatt and Son (North Nigeria) Ltd Vs Plumstead Investment Limited (2019) 12 NWLR (Pt 1687) 540, Ararume Vs Ubah (2021) 8 NWLR (Pt 1779) 511.
There is no document exhibited or frontloaded by the Appellants in support of the facts in the issue on the counterclaim and it was not their case that they at anytime made any demand on the Respondents in the respect of the alleged breach of contract and/or for the payment of the cost of storage of the said items. These show that the issue of full performance of the contract on the part of the Appellants and failure of the Respondents to accept delivery of the mobile phones and recharge cards and counterclaim were raised as ruse to stop the Respondents from obtaining judgment under the summary judgment procedure. They did not constitute valid impediments to the Court entering summary judgment for the Respondents – Ila Enterprises Ltd Vs Umar Ali and Co Ltd (2013) LPELR-21404(CA), Thomas Wyatt and Son (North Nigeria) Ltd Vs Plumstead Investment Limited (2019) 12 NWLR (Pt 1687) 540. In Thor Limited Vs First City Merchant Bank Ltd (2005) LPELR-3242(SC), the Supreme Court made the point thus:
“…the mere fact that the defendant has a counter-claim does not necessarily entitle him to leave to defend. Where therefore, there is no defence to the plaintiff’s claim and there is no arguable set-off or bona fide counter-claim, judgment would be given to the plaintiff. In other words, if the counter-claim set up by the defendant is clearly groundless, it will be disregarded …”
The lower Court was very correct when it held that the counterclaim of the Appellants only “raised a dust of legal technicalities which have been rendered nugatory” by the undertaking given by the Appellant to repay the N30 Million.
The Appellants further canvassed the issue of presence of an arbitration clause in the contract and that the Respondents breached the clause by commencing the present action, as a defence to the action. It is elementary that an arbitration clause does not forbid a party from commencing an action in Court to resolve a dispute covered by the clause. It only empowers a defendant against whom such an action has been commenced to approach the Court at the early stage of the proceedings and before taking any positive step in the action to ask for stay of proceedings pending arbitration. Where a defendant fails to do so, he is deemed to have waived the arbitration clause and the Court is entitled to fully deal with the matter – Carlen (Nig) Ltd Vs University of Jos (1994) 1 NWLR (Pt 323) 631, Lignes Aeriennes Congolaises Vs Air Atlantic Nigeria Limited(2006) 2 NWLR (Pt 963) 49, Federal Ministry of Health Vs Dascon (Nig) Ltd (2019) 3 NWLR (Pt 1658) 127. The Appellants did not take advantage of the arbitration clause and cannot canvass same as a defence under the summary judgment procedure.
This leaves the issue of statute bar which was pleaded by the Appellants and constituted into a notice of preliminary objection. The Appellants contended that the cause of action of the Respondents accrued in 2010 when the N30 Million was paid and the parties executed the guiding contract and that the six year limitation period allowed for commencing such actions had elapsed by 2019 when the present action was commenced in the lower Court. The Respondents replied that their cause of action did not arise until September 2019 when the demand for the repayment of the N30 Million was made and the Appellants refused to pay up and that the action commenced in 2019 was within the limitation period.
The lower Court heard the preliminary objection on the merits and it dismissed same as lacking in merit. The entire decision of the lower Court on the preliminary objection was one sentence – “I have carefully perused the Notice of Preliminary objection dated 14/12/2019 and it is hereby dismissed for lacking any merit”. The lower Court did not state how it arrived at the conclusion that the preliminary objection lacked merit. It gave no reasons for its decision. The law is that it is obligatory for any Court or tribunal to give reasons for any finding of fact or holding made or conclusion reached and it should not be an issue for speculation or conjecture – A G Leventis (Nig) Plc Vs Akpu (2007) 17 NWLR (Pt 1063) 416, Gabby Stores (Nig) Ltd Vs Magaji (2015) LPELR-40381(CA), Daudu Vs Federal Republic of Nigeria (2018) LPELR-43637(SC). In Obimiami Brick & Stone (Nig) Ltd Vs African Continental Bank Ltd (1992) 3 NWLR (Pt 229) 260, Olatawura, JSC, made the point thus:
“I cannot, with respect, agree with Mr. Anyamene S.A.N. that ‘a trial Court is not bound to give its reasons for dismissing a claim abandoned by the claimant’. If that dismissal is meant to be, and in fact should be, a judgment of the Court, reasons must be given. It is not for the appellate Court to speculate why a case was dismissed, non-suited or struck out. The reason for doing so must appear on the record of the lower Court. It is not a case of discretion as canvassed by the appellant, it is in the interest of justice that any party should know why he has lost or won a case.”
In Agbanelo Vs Union Bank of Nigeria Ltd (2000) & NWLR (Pt 666) 534, Karibi-Whyte, JSC, reiterated that:
“It is an elementary and essential ingredient of the judicial function that reasons are to be given for decisions. It is the more important where appeals lie from the decisions. In any case the reasons for decisions enable the determination on appeal whether the decision was merely intuitive and arbitrary or whether it is consistent with established applicable principles. If judgments were to be delivered without supporting reasons, it will be an invitation to arbitrariness, a rule of merely tossing the coin and likelihood to result in juridical anarchy. However, a judgment will not be set aside merely because the reasons given were bad if the judgment itself is right.”
Where a Court defaults in giving reasons for findings of fact or orders made in a ruling or judgment, that ruling or judgment cannot be allowed to stand – South Trust Bank Vs Pheranzy Gas Ltd (2014) 16 NWLR (Pt 1432) 1, Economic and Financial Crimes Commission Vs Dada (2017) 1 NWLR (Pt 1494) 567, both of which cases quoted and relied on the decision of the Supreme Court in Ojogbue Vs Nnubia (1972) All NLR 664 where Coker, JSC at page 669 stated:
“It is true that the learned trial Judge gave judgment in favour of the Defendants but it is equally true that throughout the judgment he made no clear findings in which he had unequivocally held as against the claims of the Plaintiffs … The result is that we cannot see the basis on which the Plaintiffs case was dismissed nor, what is worse, the grounds on which the learned trial Judge had proceeded to enter judgment for the Defendants. A judgment of Court must demonstrate a full dispassionate consideration of the issues properly canvassed and heard and must reflect the results of such exercise. We are unable to say that the judgment in this case as it stands did this and we cannot allow it to stand.”
The decision of the lower Court dismissing the preliminary objection of the Appellants as lacking in merit cannot be allowed to stand. The decision is hereby set aside.
The options open to this Court on the question of whether the action of the Respondents was statute barred or not are either to remit the matter back to the lower Court for a proper consideration and resolution of the question or to exercise its general powers under Section 15 of the Court of Appeal Act to consider and determine the question. This Court is of the view that this is a proper case for it to exercise its general powers under the Court of Appeal Act – Inakoju Vs Adeleke (2007) 4 NWLR (Pt 1025) 423, Usman Vs Kaduna State House of Assembly (2007) 11 NWLR (Pt 1044) 148.
Now, an action is said to be statute barred when it is instituted after the expiration of the prescribed period. The essence is that a legal right to enforce an action is not a perpetual right, but a right generally limited by statute. Therefore, a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had elapsed – Mulima Vs Usman (2014) 16 NWLR (Pt 1432) 160, Garba Vs All Progressives Congress (2020) 2 NWLR (Pt 1708) 345, All Progressives Congress Vs Uduji (2020) 2 NWLR (Pt 1709) 541, Abubakar Vs Michelin Motor Services Ltd (No 1) (2020) 12 NWLR (Pt 1739) 555, Faloyo Vs Faloyo (2021) 3 NWLR (Pt 1762) 114.
Where an action is statute barred, the effect is that the cause of action is or becomes extinct by operation of law, and it can no longer be maintained in a law Court – CIL Risk & Asset Management Ltd Vs Ekiti State Government (2020) 12 NWLR (Pt 1738) 203, Wali Vs All Progressives Congress (2020) 16 NWLR (Pt 1749) 82, Aguma Vs All Progressives Congress (2021) 14 NWLR (Pt 1796) 351, Abacha Vs Attorney General, Federation (2021) 10 NWLR (Pt 1783) 129, Oko Vs Attorney General, Ebonyi State (2021) 14 NWLR (Pt 1795) 63.
Once an action is determined and found to be statute barred by a Court, it is liable to be dismissed for being initiated in contravention of a statute. The reason being that legal action barred by statute is one which can no longer be validly instituted or commenced by use of the judicial process of any Court of law. The salient effect of a statute of limitation is that either a claimant initiates the legal action within the period of time prescribed and limited by statute or he keeps his peace forever – Ibeneme Vs Bayelsa State Government (2020) 5 NWLR (Pt 1717) 189, Liverpool and London Steamship Protection and Indemnity Association Limited Vs M/T Tuma (2021) 10 NWLR (Pt 1784) 347. Once the claim of a claimant is statute barred, it is stale, dead and buried, never to be revived. The rights of the parties have been settled for good on the basis of the maxim that it is for the common good that there should be an end to ligation –Zubair Vs Kolawole (2019) 11 NWLR (Pt 1682) 66.
To ascertain when an action is statute barred, the following enquiries must be made: (i) seek to know when the cause of action accrued to the claimant; (ii) check from the writ of summons when the suit was instituted; (iii) ascertain from the statute in question what period of time it prescribed to bring the action; and (iv) check when the period that elapsed between when the cause of action accrued and the date the writ of summons was filed is less or more that the time prescribed by the statute – Takori Vs Matawalle (2020) 17 NWLR (Pt 1752) 165, Statoil (Nig) Ltd Vs Inducon (Nig) Ltd (2021) 1 NWLR (Pt 1774) 1, Radiographers Registration Board, Nigeria Vs Medical & Health Workers Union of Nigeria (2021) 8 NWLR (Pt 1777) 149, Idachaba Vs University of Agriculture, Makurdi (2021) 11 NWLR (Pt 1787) 209, Wulangs Vs Central Bank of Nigeria (2021) 16 NWLR (Pt 1802) 195.
A cause of action arises on the date or from the time the breach of duty occurs which warrants the person adversely affected by the breach or the injury therefrom to sue in a law Court to assert or protect his legal right that has been violated. Thus, a cause of action enures to a claimant the very moment a wrong done to him by another which factual situation entitles him to seek relief in Court by way of enforcement –Airtel Networks Ltd Vs Plus Ltd (2020) 15 NWLR (Pt 1747) 235, Statoil (Nig) Ltd Vs Inducon (Nig) Ltd supra, AbdulRahman Vs Nigeria National Petroleum Corporation (2021) 12 NWLR (Pt 1791) 405.
In the present case, the cause of action of the Respondents was for the refund of N30 Million paid to the Appellants for a transaction that failed. It is settled law that in such action, the cause of action accrues from the time the repayment of the money became due and payable, or, in the absence of an agreed time for repayment, when a demand for repayment is made –Lagos University Teaching Hospital and Management Board Vs Adewole (1998) 5 NWLR (Pt 550) 406, Agbabiaka Vs First Bank of Nigeria Plc (2020) 6 NWLR (Pt 1719) 77, Oko Vs Attorney General, Ebonyi State (2021) 4 NWLR (Pt 1795) 63.
It is not in contest that there was no agreement between the parties as to the time the refund of the N30 Million paid would be made should the purpose of the transaction fail. However, when it was obvious to the Respondents that the purpose for which they paid the money had failed, they caused the Appellants to give an undertaking on the repayment of the money. In the said undertaking, Exhibit D to the motion for summary judgment, the Appellants undertook to refund the money unfailingly on or before the 31st of December, 2011. The cause of action of the Respondents thus accrued on the 1st of January, 2012 when the Appellants failed to fulfill the undertaking. The present action was instituted on the 17th of September, 2019, seven years nine months after the cause of action accrued.
The next question is – what is the time allowed by statute for the commencement of such an action in Kano State? This Court is not aware that Kano State has a localized Limitation Law and its attention has not been pointed to any such law. The Limitation Act enacted by the Federal Government in 1966 was omitted from the Laws of the Federation when they were consolidated in 1994, 2004 and 2010 and was only included as part of the Laws of the Federal Capital Territory. This has prompted this Court to hold that the Limitation Act is only applicable to matters commenced in the Federal Capital Territory – Raleigh Industries (Nig) Ltd Vs Nwaiwu (1994) 4 NWLR (Pt 341) 760, Etim Vs Inspector General of Police (2001) 11 NWLR (Pt 724) 266.
Counsel to the Appellants predicated his assertion of statute bar on the provisions of Section 15 of the Limitations of Actions Act, 1881, which he described as a statute of general application, and the section reads thus:
“All actions for account, or for not accounting and suits for such accounts, as concern the trade of merchandise between merchant and merchant, their factors or servants, shall be commenced and sued within six years after the cause of such actions or suits, and no claim in respect of a matter which arose more than six years before the commencement of such action or suit shall be enforceable by action or suit by reason only of some other matter of claim comprised in the same account having arisen within six years next before the commencement of such action or suit.”
It is trite that in interpreting a statute, the duty of a Court is to discover the intention of the law maker and in so doing it must consider the words used in order to discover their ordinary meaning, and then give use their ordinary meaning as they relate to the subject matter – Gbagbarigha Vs Toruemi (2013) 6 NWLR (Pt 1350) 289, Abacha Vs Attorney General, Federation (2021) 10 NWLR (Pt 1783) 129, Jegede Vs INEC (2021) 14 NWLR (Pt 1797) 409. It is also elementary that in interpreting a statute, nothing is to be added to or taken from its provisions unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express – Federal Republic of Nigeria Vs Bankole (2014) 11 NWLR (Pt 1418) 337, Bot Vs Jos Electricity Distribution Plc (2021) 15 NWLR (Pt 1798) 53, Kassim Vs Sadiku (2021) 18 NWLR (Pt 1807) 123. Further, the Courts have held that a statute that seeks to take away the rights of a person must be construed fortissimo contra preferentes; that is strictly and sympathetically in favour of the person – CIL Risk & Asset Management Ltd Vs Ekiti State Government (2020) 12 NWLR (Pt 1738) 203, National Unity Party Vs Independent National Electoral Commission (2021) 17 NWLR (Pt 1805) 305.
Applying these principles to the wordings of the above provision, it is clear that the provision applies to actions for account in respect of trade carried out between two merchants or their servants. An action for refund of money for a consideration that failed is not an action for account for in respect of trade and it is not covered by the provision. It is trite that where the provision of a statute expressly identifies the situations to which it applies, it automatically excludes those situations that are not identified; this is under the maxim: the express mention of certain things excludes those not mentioned – Oni Vs Governor, Ekiti State (2019) 5 NWLR (Pt 1664) 1, Mobil Producing (Nig) Unlimited Vs Federal Inland Revenue Service (2021) 11 NWLR (Pt 1788) 485, All Progressive Congress Vs Moses (2021) 14 NWLR (Pt 1796) 278. This Court has read the other provisions of the Limitations of Actions Act, 1881 upon which the Appellants predicated their case of statute bar and none of them covers the cause of action of the Respondents.
A plea that an action is statute barred is a defence and the burden of proving that an action is statute barred lies on the party who asserts same –Adejumo Vs Olawaiye (1996) 1 NWLR (Pt 425) 436, N.I.I.A. Vs Ayanfalu (2007) 2 NWLR (Pt 1018) 246, Statoil (Nig) Ltd Vs Inducon (Nig) Ltd supra, Liverpool and London Steamship Protection and Indemnity Association Limited Vs M/T Tuma supra. The onus was on the Appellants to supply sufficient materials to sustain the assertion that the action of the Respondents is statute barred. They have failed to produce or refer this Court to the relevant Limitation Law that barred the present action of the Respondents. Their plea of statute bar cannot thus constitute a viable defence to the claims of the Respondents.
The lower Court was therefore correct when it found that the Appellants did not put forward any credible, viable or plausible defence to the claims of the Respondents to warrant the case being transferred to the general cause list for hearing on the merits. The sole issue for determination is resolved in favour of the Respondents.
In conclusion, the appeal fails as lacking in merit and it is hereby dismissed. The judgment of the High Court of Kano State delivered in Suit No K/362/2019 by the Chief Judge, Honorable Justice Nura Sagir Umar on the 24th of September, 2019 is affirmed. The Respondents are awarded the costs of the appeal assessed at N100,000.00. These shall be the orders of this Court.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA and I am in complete agreement with the reasoning and conclusion reached therein. The appeal is without merit and it is accordingly dismissed. I abide by all other consequential orders as contained in the lead judgment.
USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother HABEEB ADEWALE. O. ABIRU, JCA. I am in agreement with the issues considered and resolved by His Lordship. I have nothing more to add. I abide by the conclusions reached therein.
Appearances:
Bashiru Ibrahim, with him, Alhaji Ibrahim For Appellant(s)
B. Y. Gambo For Respondent(s)
