Legalpedia Citation: (2023-08) Legalpedia 53210 (CA)

In the Court of Appeal

MAKURDI JUDICIAL DIVISION

Tue Jun 6, 2023

Suit Number: CA/MK/245/2018

CORAM

MOHAMMED AMBI-USI DANJUMA JCA

BIOBELE ABRAHAM GEORGEWILL JCA

IBRAHIM WAKILI JAURO JCA

PARTIES

CHIEF ALOYSIUS ONWUHA ONUOHA

APPELLANTS

1. UNICON THRIFT AND LOANS (MPCS) LIMITED
2. ISAAC BASSEY
3. FRANCISCA ALELELE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONTRACT, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

Sometime in August 2016, the Plaintiff/Appellant was approached by the Respondents to deposit the sum of N2,000,000.00 only as a fixed deposit placement for three months to mature in November, 2016, and to be paid monthly interest of 4% on the said sum at N80,000.00 per month. The Appellant accepted this offer by signing the column on the said letter as required by the Respondents, and paid over to the Respondents the said N2,000,000.00 as fixed deposit. Upon maturity, the Appellant was paid the interest of N80,000.00 for the months of November and December, 2016 by the Respondents in line with the terms of the contract.

However, from January, February and March 2017 the Respondents defaulted in paying the monthly interest of N80,000.00 per month on the fixed deposit sum of N2,000,000.00 to the Appellant, and had refused to do so despite repeated demands by the Appellant, hence the action before the lower Court in the form of Writ of Summons as well as the Application for Summary Judgment by the Appellant against the Respondent to recover the sum owing and due payable to him by the Respondents as well as pre and post-judgment interest.

The Respondent did not file either their defense to the claims of the Appellant or any counter-affidavit to the affidavit in support of the application for Summary Judgment.

The lower Court proceeded to hear the Appellant’s application for Summary Judgment and in its judgment dismissed the Appellant’s suit, though it was not defended by the Respondents, for lacking in merit. Dissatisfied, the Appellant made the instant appeal.

 

HELD

Appeal allowed

ISSUES

Whether or not the lower Court was justified in law in dismissing the Appellant’s application for Summary Judgment as well as the entire case of the Appellant for lacking in merit?

 

RATIONES DECIDENDI

ISSUES – WHERE AN ISSUE RAISED BY ONE PARTY IS NOT COUNTERED BY THE OTHER

In law, generally, or should I say ordinarily, the failure of the Respondents to make any counter-submissions on all the issues and arguments as canvassed in the Appellant’s brief would simply amount to a concession by the Respondents to all the arguments canvassed in the Appellant’s brief. This is so because in law where one party is duly served with the arguments of the other party and he fails or neglects or refuses to respond to the said arguments as proffered by the other party, it would be taken that he has conceded to the arguments of the other party. See Dr. Arthur Nwankwo & Ors V. Alhaji Umaru Yar’Adua & Ors ​ (2010) 12 NWLR (Pt. 1209) 518. See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528(CA) per Sir Biobele Abraham Georgewill JCA; Ochigbo V. Ameh (2023) LPELR-59616(CA) per Sir Biobele Abraham Georgewill JCA; Ahmed V. Ahmed (2013) 41 WRN 1.

Be that as it may, I am aware that in law where an issue raised by one party is not countered by the other party, it does not automatically follow that such arguments, though conceded, are to be taken hook, line and sinker by the Court. Thus, the failure of one party to counter the arguments of the other party alone does not ipso facto without more confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639. See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528(CA) per Sir Biobele Abraham Georgewill JCA, Ochigbo V. Ameh (2023) LPELR-59616(CA) per Sir Biobele Abraham Georgewill JCA, Ahmed V. Ahmed (2013) 41 WRN 1, Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80, Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80. – Per B. A. Georgewill, JCA

SUMMARY JUDGMENT – WHEN SUMMARY JUDGMENT PROCEDURE CAN BE INVOKED

…the fulcrum of this appeal is the vexed issue of when proceedings under the Summary Judgment procedure, which is akin or similar to the Undefended List procedure, can properly be invoked by a party and when should judgment be entered and or when should such a claim be heard at plenary trial. See Arcadia Petroleum Nig. Ltd & Anor V. Northside Apartment Ltd & Anor (2022) LPELR-57506(CA) per Sir Biobele Abraham Georgewill JCA. See also United Bank for Africa Plc V. E. I. Natama International Complex Ltd (2020) LPELR-51981(CA) per Sir Biobele Abraham Georgewill, JCA.

In law, the Summary Judgment procedure, just like the Undefended List procedure, is usually aimed at dispensing with dispatch cases which are virtually uncontested and/or cases where there can be no reasonable doubt that a Claimant is entitled to judgment and it is inexpedient to allow a Defendant to defend for mere purposes of delay. It is designed to secure quick justice and avoid the injustice likely to occur when there is no genuine defense on the merits to the Claimant’s case. It is to shorten the hearing of a suit where the claim is for liquidated sum. Thus, it is for the plain and straightforward cases to the joys and the interest of justice and not for the devious and crafty Defendant whose joy to unnecessarily delay the payment of his just debt is timely cut short by due process of law. See Uba & Anor V. Jargaba (2007)11 NWLR (Pt. 1045) 247 per Tobi, JSC. See also Arcadia Petroleum Nig. Ltd & Anor V. Northside Apartment Ltd & Anor. (2022) LPELR-57506(CA) per Sir Biobele Abraham Georgewill, JCA. See also United Bank for Africa Plc V. E. I. Natama International Complex Ltd (2020) LPELR-51981(CA) per Sir Biobele Abraham Georgewill, JCA; Dio-Global Concepts Nig. Ltd. V. Access Bank Nig. Plc. (2016) LPELR – 40789 (CA) per Sir Biobele Abraham Georgewill, JCA; Dala Air Services Ltd V. Sudan Airways Ltd (2004) All FWLR (Pt. 238) 697; Agro Millers Limited V. Confidential Merchant Bank (Nig) Plc (1997) 10 NWLR (Pt. 525) 469. – Per B. A. Georgewill, JCA

SUMMARY JUDGMENT – THE ESSENCE OF AND PROCEDURE FOR SUMMARY JUDGMENT

“Now, under the Summary Judgment Procedure, which is akin to, or at least similar, to the Undefended List Procedure, going by the several judicial authorities on the essence of this procedure, it is geared towards the attainment of speedy but substantial justice in cases in which a Defendant really has no defense to the claim of the Claimant against him and for judgment to be entered if there be nothing worth being further investigated by the Court on the affidavit evidence of the parties. It is to be noted here, and very pertinently too, that once the Claimant’s suit is filed and an application is made for Summary Judgment on the ground that the Defendant has no defense to the claims of the Claimant, the very straightforward, and if I dare say very simple uncomplicated procedure on the date fixed for hearing of the application of Summary Judgment, where the Defendant had filed any processes in his defense, is that the Court would hear the parties or their counsel ascertain if on the facts as placed before it the Defendant had made out any triable issue or defense on the merit.

However, in arriving at such a finding, the Court would critically scrutinize and examine the affidavits and documentary Exhibits, if any, of the parties to determine at that stage if the Defendant has disclosed any defense on the merit or raised at least triable issue that would need to be further enquired into by the Court by way of a full hearing. See Order 11 Rule (1), (4) and 5(2) of the Benue State High Court (Civil Procedure) Rules 2007. See also UBA Plc V. Jargaba (2007) All FWLR (Pt. 1045) 247 @ p. 263; Arcadia Petroleum Nig. Ltd & Anor V. Northside Apartment Ltd & Anor. (2022)LPELR-57506(CA) per Sir Biobele Abraham Georgewill, JCA.

But, where the Court finds that either the Defendant has not disclosed any defense on the merit or raised any triable issue, or has not even filed any process in his defense, it is under a duty to proceed to enter judgment in favor of the Claimant against the Defendant, no more no less. It is only where the affidavit of the Defendant in his defense discloses either a defense on the merit or triable issues or if there are substantial conflicts as to the facts of the case on the affidavits of the parties, it would be sufficient for the Court to hold that the Defendant has raised a triable issue as would require further enquiry and thus a plenary trial on the pleadings and evidence of the parties and their witnesses. The Claimant’s claim would then be heard at plenary trial in which the contending rights of the parties would be enquired into and decided by the Court on the merit on the evidence as would be put forward by them at the trial. See Arcadia Petroleum Nig. Ltd & Anor V. Northside Apartment Ltd & Anor. (2022)LPELR-57506(CA) per Sir Biobele Abraham Georgewill, JCA. See also United Bank For Africa Plc V. E. I. Natama International Complex Ltd (2020) LPELR-51981(CA) per Sir Biobele Abraham Georgewill JCA.”-Per B. A. Georgewill, JCA

SUMMARY JUDGMENT – DUTY TO SHOW DEFENCE ON THE MERIT/TRIABLE ISSUE UNDER THE SUMMARY JUDGMENT PROCEDURE

“My lords, the duty to show defense on the merit or triable issue under the Summary Judgment procedure was squarely on the Respondents and not on the Appellant. It is the Respondents that were the Defendants before the lower Court and by law must disclose by their depositions in their counter-affidavit in support, together with relevant documentary Exhibits, if any, showing that they were either not indebted to the Appellant or that there are substantial and or triable issue or creating some doubts on the Appellant’s claim…

In law, all the onus that is placed on the Appellant, as Claimant, under the Summary Judgment Procedure was to show at least a prima facie case of his claim against the Respondents, as Defendants before the lower Court.

The Respondents were duly served with the claims and processes of the Appellant, yet they choose to neglect, refuse and/or failed to file any process in their defense to show any defense on the merit to the claims of the Appellant against them or at least make out triable issue to warrant the hearing of the claims of the Appellant against them at trial at plenary. In law, under the Summary Judgment procedure, as akin to the Undefended List procedure, there can even be no issue of breach of fair hearing here if the lower Court had proceeded to enter judgment against the Respondent on the claims of the Appellant.

COURTS, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE SUMMARY JUDGMENT – DUTY OF THE CLAIMANT UNDER SUMMARY JUDGMENT PROCEDURE

See Arcadia Petroleum Nig. Ltd & Anor V. Northside Apartment Ltd & Anor. (2022) LPELR-57506 (CA) per Sir Biobele Abraham Georgewill, JCA. See also Intercontinental Bank Ltd V. Brifina Limited (2012) 13 NWLR (Pt. 1316)1. See Mat Holdings Ltd V. U.B.A Plc. (2003) 2 NWLR (Pt. 803) 71 @ p. 90. See also Arcadia Petroleum Nig. Ltd & Anor V. Northside Apartment Ltd & Anor. (2022) LPELR – 57506(CA) per Sir Biobele Abraham Georgewill, JCA; Aso Motel Kaduna Ltd V. Deyemo (2006) 7 NWLR (Pt. 978)80 @ pp. 121 – 122; Dio-Global Concepts Nig. Ltd. V. Access Bank Nig. Plc. (2016) LPELR – 40789 (CA) per Sir Biobele Abraham Georgewill, JCA.”-Per B. A. Georgewill, JCA

JUDGMENT – WHEN A LOWER COURT JUDGMENT IS FOUND TO BE PERVERSE

“In all, I find and I hereby so hold firmly that the judgment of the lower Court was both procedurally wrong and perverse in law and is therefore, liable to be dismissed. In law, such a perverse finding is liable to be set aside.

See Central Bank of Nigeria V. Dantrans Nigeria Limited & Ors. (2018) LPELR – 46678 (CA), where this Court per Sir Biobele Abraham Georgewill, JCA, has stated inter alia thus:

“In law, when it is said that a decision is perverse it means persistent in error, different from what is reasonable or required and against the weight of evidence… A decision or finding or conclusion reached is perverse amongst other grounds if it does not flow from the established facts from the evidence led before the Court or it takes into consideration matters extraneous to the issues placed before the Court in evidence by the parties.”

See also Zakariya V. Mohammed (2022) LPELR – 57505(CA) per Sir Biobele Abraham Georgewill, JCA; CSS Book Shop Ltd. V. The Regd. Trustees of Muslim Community in Rivers State (2006) 4 SCM 310; Ogunde V. Abdulsalam (2017) LPELR – 41875 (CA) per Sir Biobele Abraham Georgewill JCA, @ pp. 34 – 35; Michael V. Access Bank Plc (2017) LPELR – 41981 (CA) per Sir Biobele Abraham Georgewill JCA, @ pp. 38 – 39.”-Per B. A. Georgewill, JCA

SUMMARY JUDGMENT – DUTY OF THE CLAIMANT UNDER SUMMARY JUDGMENT PROCEDURE

“In law, the onus placed on the Appellant as claimant in this appeal under the Summary Judgment procedure was to show at least a prima facie case of his claim against the Respondents as defendants before the trial Court. See Intercontinental Bank Ltd v Brifina Ltd (2012) 13 NWLR pt 1916 pg 1.

In the instant appeal, the Respondents, from the evidence before the lower Court, were served with the claims and processes of the Applicant. However, they refused to respond or show any defense on the merit. At that stage, all the lower Court ought to have done was to proceed to enter judgment against the Respondents, and there can be no issue of breach of fair hearing in any way. See Dio-Global Concepts (Nig) Ltd v Access Bank Nig Plc (2011) LPELR-40789(CA).” –Per I. W. Jauro, JCA

CASES CITED

STATUTES REFERRED TO

Benue State High Court (Civil Procedure) Rules 2007

CLICK HERE TO READ FULL JUDGMENT