GLOBUS ENTERPRISES LTD & ANOR v. SULEIMAN
(2020)LCN/13955(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, February 28, 2020
CA/K/55/2017
Before Our Lordships:
Hussein Mukhtar Justice of the Court of Appeal
Obietonbara O. Daniel-Kalio Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Between
1. GLOBUS ENTERPRISES LTD 2. ALHAJI KAMILU ILA APPELANT(S)
And
AMINU SULEIMAN RESPONDENT(S)
RATIO
A SUMMARY JUDGEMENT
The summary judgment procedure is meant to speedily do justice in cases which are virtually uncontested; where there can be no reasonable doubt that a plaintiff is entitled to judgment; and where it is inexpedient to allow a defendant to defend for the mere purpose of delay. See UNITED BANK FOR AFRICA PLC V. JARGABA (2007) 11 NWLR PartlO45 p. 247 at p. 270; ALIYU V. MOHAMMED (2014) LPELR-23602 (CA). Where the evidence put forward by a plaintiff is not clear cut; is opaque and requires explanation or clarification, it will be expedient to allow the defendant to put forward his defense and in such circumstances the summary judgment procedure will not be appropriate. PER DANIEL-KALIO, J.C.A.
HUSSEIN MUKHTAR J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kano State delivered on the 18th day of July 2016, by Hon. Justice Mohammed Yahaya J, in Suit No. K/175/2016 in favour of the Respondent (as Plaintiff) against the Appellants (as Defendants) under the summary judgment procedure.
The dispute between the parties herein took its genesis from the suit filed by the Respondents who claimed to have supplied the Appellants with animal skins between 2011-2014 but all efforts made by the Respondent to recover the price from the Appellants were unsuccessful. The writ of summons was filed on 13th April 2016 along with a motion for summary judgment seeking that the Defendants pay to the Plaintiff, the sum of Fifty-One Million Eight Hundred and Eight-One Thousand Three Hundred and Forty Naira (N51,881,340.00) being the outstanding balance of the goods supplied by the Respondent/ Plaintiff to the Appellants/ Defendants. The Appellants on their part filed a motion for extension of time to file a joint statement of defence, depositions on oath and a counter affidavit, which was heard and granted.
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On the return date, the learned trial judge entered Judgment in favour of the Respondent, with which the Appellants became disgruntled and proceeded to challenge same by lodging this appeal.
The Appellants, being dissatisfied with the decision of the learned trial Judge, filed a Notice of Appeal predicated on four grounds reproduced bereft of their particulars thus:
1. The Learned Trial Judge erred in Law when he held that the case of the Respondent was one that could be brought under Order 11 of the Kano State High Court (Civil Procedure) Rules and that the Appellants had not disclosed a prima facie defence to the claim and entered Judgment for the Respondent pursuant to Order 11 Rule 5(2) of the Rules.
2. The learned trial Judge erred in Law when he held that the Appellants “Exhibit “KA” attached to their Counter-Affidavit to the Respondent’s Motion for Judgment was clearly inadmissible in Law pursuant to Section 83(3) & (4) of the Evidence Act 2011.
3. The learned trial Judge erred in Law when he clearly understood that the Appellants were contesting the 2nd Appellant’s signature on the Respondent’s
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Exhibit A yet the learned Judge failed to resolve the issue of the signature as demanded by Sections 93(1) and 116 of the Evidence Act 2011.
4. The Judgment of the learned trial Judge entering Judgment for the Respondent under Summary Judgment without determining the case by tangible evidence is perverse and against the weight of the evidence in the case.
The learned counsel for the Appellants Peter Oluwafemi, Esq distilled a lone issue for determination thus:
Whether in the circumstances of the Respondent’s evidence, it was not wrong for the learned Trial Judge to have entered Judgment in favour of the Respondent under the Summary Judgment Procedure?
The learned counsel for the Respondent Abdulkarim Hanga, Esq., however, raised twin issues for determination thus:
1. Whether or not the evaluation of the evidence placed before the lower Court by the learned trial Judge was perverse (arose from grounds 1, 2 & 3 of the grounds of appeal)
2. Whether or not the learned trial Judge was right by entering judgment in favour of the Respondent
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without of the notice of appeal).
These twin issues are subsumed by the Appellants’ lone and more elegantly couched issue and same will be used to determine the appeal.
Arguing the issue for determination, the learned counsel for the Appellants submitted that the evidence put forward by the Respondent before the trial Court, was not sufficient to entitle him to summary judgment under Court Rules. It was argued that the Respondent’s case as presented before the trial Court was defective and ought not have been heard and determined under Order 11 of the Kano State High Court (Civil Procedure) Rules, 2014.
It was further argued that paragraph 7 of the Respondent’s Statement of Claim and paragraph 7 of the Affidavit in support of his Motion for Summary Judgment contradicted Exhibit A attached to the Affidavit in support of the Motion for Summary Judgment and the said contradiction was not explained by the Respondent throughout the trial nor resolved by the learned trial Judge before entering Judgment for the Respondent. Reference was made specifically to the following alleged contradictions:
The Respondent’s Exhibit A is
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dated 22-3-2016, while the 2nd Appellant (as Managing Director of the 1st Appellant) was alleged to have signed the same document on 4/3/2016 and the Trial Judge without minding the contradiction still went ahead and entered judgment in favour of the Respondent relying solely on the same document Exhibit A.
(b) That Exhibit A does not support the Respondent’s case as it only states that the Respondent owes the Appellants and had promised to pay the Appellants without delay.
It was argued that these contradictions were neither explained by the Respondent nor did the learned trial Judge deem it necessary to resolve same. See the case of U. B. A Vs. BTL Industries Ltd (2007) ALL FWLR (Pt 352) p 1615 @ 1684, Paras. F-G; Alabi Vs. State (2007) ALL FWLR (PT 376) Pg. 794 @ 803, Paras. D – E where the Court held that:
“when there is a contradiction in the evidence of the witnesses, the Court has a duty to see that the contradiction is resolved one way or the other by taking evidence”
It was submitted for the Appellants that the learned trial Judge ought to have first and foremost resolved the contradictions in Exhibit A
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before relying on it in the Judgment.
It was further argued, for the Appellants, that the learned trial Judge had also failed to resolve the disputed signature of the 2nd Appellant on the Respondent’s Exhibit “A”, notwithstanding the fact that the Appellants had vehemently denied the signing of the document in paragraph 5 of the mentioned Counter-Affidavit. (See page 36 of the Records of Appeal). Section 93 (1) of the Evidence Act, 2011 provides thus:
“If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in the person’s handwriting must be proved to be in his handwriting”
In the case of Adewale Vs. Governor, Ekiti State (2007) ALL FWLR (383) Pg.130 @147 Paras. D – E, the Court observed thus:
“When two parties in a dispute render their fact into affidavits and there are conflicts in the affidavits on the substance of the dispute, such conflicts should best be resolved by having oral evidence from the parties. A Court of law has no power to suo motu reconcile conflicts in
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the affidavit evidence without oral evidence.”
It was finally submitted that the case presented by the Respondent was not by its nature one that could be determined under Order 11 Rule 5(2) of the Kano State High Court (Civil Procedure) Rules. The Court was urged to resolve the sole issue in favour of the Appellants, allow the appeal and set aside the judgment of the Court below.
The learned counsel for the Respondent Abdulkarim Hanga, Esq., however argued that the matter was instituted under the undefended list procedure, which by its very nature culminates into a summary judgment without formal trial if the affidavit supporting the Defendant’s notice of intention to defend fails to disclose a defence on the merit. It was argued, for the Respondent, that the Appellants did not dispute being indebted to the Respondent but only denied the specimen of signature on Exhibit A.
It was further argued, for the Respondent that the burden of proof was on the Appellants not the Respondent. The question posed by this submission is whether the Court faced with disputed issues requiring proof by evidence could, without such proof, proceed to
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enter judgment under the summary judgment procedure.
It was the submission of the Respondent’s counsel as was held in case of BOYE INDUSTRIES LTD VS SOWEMIMO (2010) ALL FWLR (PT. 521) PG. 1462 @ 1475-1480, that where a trial Court is faced with a dispute with regards to signature, handwriting, finger printing impression or seal could be prove particularly when expert evidence is available. In the instant case the lower Court relied on the Provision of Section 108(2) of the Evidence Act, to ascertain the signature and hand writing by comparing the disputed signature with a sample one and relied on Exhibit A to enter judgment against the Appellants.
The Court was urged to resolve the issue in favour of the Respondent and allow the appeal.
It was further submitted that the learned trial Judge ought to have called for proof to establish whether or not the signature on Exhibit “A” is the 2nd Appellant’s signature and also to call oral evidence for the reconciliation of the conflicting Affidavits of the Parties.
The Respondent’s argument to the effect that the Statement of Claim Exhibit “A” in support of his
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Motion for Summary Judgment was withheld was rather a bit misconceived since the mere fact that there was a dispute in respect of material facts in the case. This will entail filing of pleadings and establishing the disputed facts by credible evidence.
An important feature of this case is that there was a regular statement of defence in existence before the Respondent applied for summary judgment. The question is whether or not the defendants/ Appellants should have been allowed to defend.
The Respondent’s claim was vehemently disputed by the Appellants especially Exhibit A, which is self contradictory. It is dated 22nd March 2016 but signed eighteen days earlier on 4th March 2016. Moreover, the Appellants’ Exhibit KA contains a specimen signature and company seal of the 2nd and 1st Appellants respectively showing that the said Appellants did not sign the Respondent’s Exhibit A as the signature on it was not that of the 2nd Appellant.
The summary judgment in the instant case given, on the face of glaring contradictions, inconsistencies and outright denial of the very pleadings upon which the judgment of the Court below was
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predicated is clearly perverse and this Court is duty bound to intervene in the interest of justice. There is no gain saying the fact that a judgment predicated on the merits of the case serves an aggrandized chance to convince a reasonable man that justice supports such step.
The Appellants’ affidavit in support of their notice of intention to defend had disclosed triable issues and a defence worthy of being ventilated in a full trial. I am also fortified that the Respondent has nothing to fear or lose if the matter is heard and determined on its merits. I am inclined to resolving the sole issue in favour of the Appellants and against the Respondent.
I am well focused on the merit of this appeal. It succeeds per force and it is hereby allowed. Accordingly, the judgment of the Court below delivered on the 18th day of July 2016 in Suit No. K/175/2016 is hereby set aside.
Instead thereof, the suit shall be assigned to another judge of the Court below by the Hon. Chief Judge of Kano State forthwith. The parties shall bear own costs.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have read the draft judgment of my learned brother Hussein Mukhtar JCA
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and I agree with my lord’s reasoning and conclusions. The summary judgment procedure is meant to speedily do justice in cases which are virtually uncontested; where there can be no reasonable doubt that a plaintiff is entitled to judgment; and where it is inexpedient to allow a defendant to defend for the mere purpose of delay. See UNITED BANK FOR AFRICA PLC V. JARGABA (2007) 11 NWLR PartlO45 p. 247 at p. 270; ALIYU V. MOHAMMED (2014) LPELR-23602 (CA). Where the evidence put forward by a plaintiff is not clear cut; is opaque and requires explanation or clarification, it will be expedient to allow the defendant to put forward his defense and in such circumstances the summary judgment procedure will not be appropriate.
In the appeal here, in the face of Exhibit A which is self-contradictory, the lower Court ought to have allowed the appellants put up their defense. I therefore agree with my noble lord that the appeal has merit. It is therefore allowed. I abide by the consequential orders made in the lead judgment.
SAIDU TANKO HUSSAINI, J.C.A.: This case on appeal was commenced at the trial Court vide the Writ of Summons taken out and filed
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along with the Motion for Summary Judgment.
The Appellants who were defendants at that Court however sought extension of time to file their Statement of defence and counter-affidavit to the application for Summary Judgment. By the said counter-affidavit, the Appellants are seen to challenge the suit based principally on Exhibit ‘A’.
At this point in time, it ought to have dawned on the Court below that a controversy had arisen that necessitated the Court’s intervention and to resolve those controversies one way or the other. The Court needed to first direct parties to file and exchange pleadings and transfer the case to the general cause list. This was not done. The trial Court was rather quick in granting the application for Summary Judgment, without first resolving those knotty issues.
I am one with my Lord in the lead Judgment that this appeal has considerable merit and that same be allowed. I too allow this appeal. I order that the suit be remitted to the Honourable Chief Judge, Kano State who shall reassign the case to another Judge of the State High Court for hearing de novo.
It is so ordered.
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Appearances:
PETER OLUWAFEMI, ESQ. For Appellant(s)
ABDULKARIM HANGA, ESQ. For Respondent(s)
