CORAM

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FESTUS OBANDE OGBUINYA JUSTICE, COURT OF APPEAL

ABUBAKAR SADIQ UMAR JUSTICE, COURT OF APPEAL

MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL

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PARTIES

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C AND N INVESTMENT LIMITED     —- APPELLANT

APPELLANTS 

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1. STERLING BANK PLC

2. TOTAL E & P NIGERIAL LIMITED RESPONDENTS

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, BANKING LAW, CONSTITUTIONAL LAW, CONTRACT, JUDGMENT, PRACTICE AND PROCEDURE

 

 

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SUMMARY OF FACTS

Sometimes in December, 2010, the Plaintiff/Appellant applied and was granted a loan facility in the sum of $17,000,000 (Seventeen Million U.S Dollars) by the 1st Respondent. The loan was for 78 months commencing from the 22nd December, 2010 to 22nd June, 2017. The source of the repayment of the loan is the anticipated rent from the renewal of the 2nd Respondent’s tenancy in respect of a property situate at 17/17A, Olu Holloway Road, Ikoyi, Lagos State let out to the 2nd Respondent by the Appellant. The Appellant later requested and was granted restructuring of the loan for a further period of 24 months commencing from the 22nd June, 2018 to the 22nd June, 2020.

The new terms and conditions of the restructured loan were contained in the 1st Respondent’s Offer Letter dated the 22nd June, 2018 and Facility Agreement executed to that effect. The outstanding sum at the date of restructuring the facility was the sum of $33,814,859.35(Thirty-three million, eight hundred and fourteen thousand, eight hundred and fifty nine dollars, thirty-five cents). Upon refusal of the 2nd Respondent to renew its tenancy in respect of the property, the Appellant instituted Suit No: LD/ADR/1499/17 against the 2nd Respondent. The 1st Respondent which was expecting the rent from the 2nd Respondent to be paid into the facility account in partial liquidation of the loan it advanced to the Appellant later got to know that the Appellant had settled amicably the dispute in Suit No: LD/ADR/1499/17 with the 2nd Respondent having collected a certain sum of money from the 2nd Respondent. Miffed by this development, the 1st Respondent wrote the Appellant a letter dated the 5th September, 2019 demanding the payment, within seven days, of the entire outstanding loan and accrued interest in the sum of $39,172,776.34 (Thirty nine million, one hundred and seventy two thousand U.S dollars, thirty-four cents) allegedly on account of the breach of the terms of the facility by surreptitious diversion of the rent the Appellant collected from the 2nd Respondent instead of applying same towards the liquidation of the loan.

The Appellant, via its solicitors’ letter dated the 11th September, 2019, rejected the allegation of breach of the terms of the facility contending that the loan was to be liquidated in bullet payment and not from the anticipated rent from the property let out to the 2nd Respondent and that the loan would not be due for repayment until June, 2020 according to the terms of the restructured facility. The Appellant thereafter commenced this suit on the 23rd September, 2019. The Appellant pleaded facts and frontloaded documents to show that based on the terms and condition of the restructured loan, the rent from the 2nd Respondent was no longer part of the source of liquidation of the loan and that the date for repayment of the loan would be June 22, 2020. The Lower court entered judgment in favour of the respondents. The Appellant was aggrieved by the decision hence the instant appeal.

 

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether having regards to the entire circumstances of this case, the learned judge of the lower court was right in granting the 1st Respondent’s motion for summary judgment/judgment on admission dated the 27th June, 2022?

Whether the learned lower court judge was right when he entered judgment on 15th July, 2022 in the sum of $33,814,859.35(Thirty-Three Million, Eight Hundred And Fourteen Thousand, Eight Hundred And Fifty Nine Dollars, Thirty Five Cents) in favour of the 1st Respondent against the Appellant being restructured sum that was scheduled and or due for the repayment in bullet sum on the 22nd June, 2020?

Whether the expiration of the restructured facility on the 22nd June, 2020 is a new fact that occurred during the pendency of the action at the lower court?

Whether the decision of the learned lower court judge to enter summary judgment based on several admissions of the Appellant in its pleading at the lower court is supported by the rules of the Federal High Court (Civil Procedure) Rules 2019?

Whether the consideration of the Appellant’s Reply to the Statement of defence and defence to the counter-claim by the learned lower court judge in determining the 1st Respondent’s motion for judgment amounts to the lower court suo motu raising the same without affording parties the right to be heard in respect of same?

Whether the learned lower court judge breached the Appellant’s right to fair hearing and occasioned a miscarriage of justice when it heard and determined the Appellant’s motion seeking to amend its claim; which was filed in the wake of and indeed, in direct reaction to the 1st Respondent’s motion for judgment?

 

 

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RATIONES DECIDENDI

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SUMMARY JUDGMENT – MEANING OF SUMMARY JUDGMENT

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The Black’s Law Dictionary, 9th Edition defines summary judgment as;

‘‘a judgment granted on a claim or defence about which there is no genuine issue of material fact and upon which the applicant is entitled to prevail as a matter of law.”

The Apex court captured the essence of a summary judgment in LEWIS vs. UBA (2016) LPELR-40661(SC) (PP. 21-22 PARAS. E), PER KEKERE-EKUN, J.S.C, said

“The summary judgment procedure is for disposing of cases which are virtually uncontested with dispatch. It applies to cases where there can be no reasonable doubt that the plaintiff is entitled to judgment and where it is inexpedient to allow a defendant to defend for mere purposes of delay. It is for the plain and straight forward, not for the devious and crafty. See U.B.A. Plc. vs. Jargaba (2007) 11 NWLR (Pt. 1045) 247 @ 270 F-H per I.T. Muhammad, JSC; Shodipo vs. Leminkainen OY (1986) 1 NWLR (Pt. 15) 230: Adebisi Macgregor Ass. Ltd. vs. N.M.B. Ltd (1996) 2 NWLR (Pt. 431) 378; (1996) 2 SCNJ 72 @ 81.”  14 NWLR (PT 1055) 441. ”

Similarly, this court PER ABIRU, J.C.A in NEW NIGERIAN NEWSPAPERS LTD vs. AGBOMABINI (2013) LPELR-20741(CA) (PP. 45-46 PARAS. D) espoused the law

“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 vs. Textile Ltd vs. Asaba Textile Mill Plc. (2013) 2 NWLR (Pt. 1338) 357.

From the plethora of decided cases, a summary judgment is one given in favour of a claimant/counter-claimant upon the state of the pleadings before the court and without the trial of the issues involved. The whole essence of summary judgment is to ensure quick dispensation of justice by eliminating delay that may be caused by trial where there is obviously no defence to a claim and thus prevent the grave injustice that might occur through a protracted frivolous trial. In other words, the summary judgment rules are specially designed 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. See: UNITED BANK FOR AFRICA PLC vs. JARGABA (2007) 11 NWLR (PT 1045) 247, UNIVERSITY OF BENIN vs. KRAUS THOMPSON ORGANIZATION LTD (2007); NEW NIGERIAN NEWSPAPERS LTD vs. AGBOMABINI (2013) LPELR-20741(CA) (PP. 55 PARAS. A-A); MADUIKE vs. TETELIS (NIG) LTD (2015) LPELR-24288(CA) (PP. 15 PARAS. C); ELFA LTD vs. CITIBANK NIG. & ANOR (2013) LPELR-20721(CA) (PP. 25 PARAS. B); UGOCHUKWU vs. OKONKWO (PP. 13 PARAS. A); NASCO TOWN PLC vs. MR. FESTUS UDE NWABUEZE (2014) LPELR- 22526. Flowing from the foregoing, I am of the firm view that the provision of order 15 rule 4 of the Federal High Court reproduced above is a specie of rules designed to achieve quick dispensation of justice as it enables the court to give judgment without trial upon a claim or any aspect of a claim admitted by the defendant. A judgment given pursuant to the said provision is a summary judgment. – Per A. S. Umar, JCA

 

 

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DOCUMENT – CONDUCT OF A PARTY WHO PLEADS A DOCUMENT

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It does not accord with the dictates of morality, logic and law to plead a document which you accepted by executing it and prayed the court to declare it as the document governing the relationship between you and the other party only for you to turn around and put up an argument that the content of the document was unilaterally determined by the other side and that you should not be bound by it. – Per A. S. Umar, JCA

 

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Evidence Act, 2011

3. Federal High Court (Civil Procedure) Rules 2019

 

 

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