CORAM

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Ita George Mbaba JCA

Uchechukwu Onyemenam JCA

Usman Alhaji Musale JCA

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PARTIES

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1. OMNISPHERE GLOBAL INVESTMENTS LTD

2. MIKE OLADUNJOYE

APPELLANTS 

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1. SAMBAJO GENERAL ENTERPRISE LTD

2. ALH. SALISU SAMBAJO

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

 

The Plaintiffs were Respondents herein and Appellants were the Defendants at the Lower Court.

Plaintiffs and Defendants had entered into a contract for the supply of 10,980 Jerry cans of 25L Omni Canola Blend Oil at the cost of $25 USD each, totaling $274,500 USD (Two Hundred and Seventy Four Thousand Five Hundred Dollars). The contract was entered into in Kano, where the Respondents made a deposit of N10 Million to Appellants, through Fidelity Bank, Kano branch (see Exhibit SA1). The Respondents claimed that the said goods were later placed on prohibition by the Customs, making the contract illegal, and so they demanded for the refund of their said N10 Million from the Appellants. Appellants refused to make the refund and rather intimidated Respondents by a letter demanding for N14,000,000 in relation to the contract.

The Respondents therefore took out the summary judgment to recover the N10 Million deposit, which Appellant challenged the jurisdiction of the trial Court to entertain, claiming the trial Court lacked territorial jurisdiction to entertain.

Upon dismissing the challenge of jurisdiction, the trial Court entered judgment for Respondents, on the grounds that Appellants failed to establish triable issue, having failed to file statement of defence, witness deposition and/or disclosure of credible defence, to warrant transferring the case to the general cause list.

Aggrieved by the decision, the Appellants made the instant appeal.

 

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HELD

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Appeal allowed

 

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ISSUES

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Was the trial Court right to dismiss the preliminary objection challenging the territorial jurisdiction of the trial Court to entertain, the Suit?

And did the Appellants disclose any triable Issue(s) or a defence on the merit, to warrant transferring the Suit to the general cause list, for hearing and determination, on the merits?

 

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RATIONES DECIDENDI

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JURISDICTION – WHAT THE COURT LOOKS AT TO FIND BASIS FOR EXERCISING JURISDICTION

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Of course, it is the Plaintiffs’ Claim (not the defence) that the Court has to look at, to find basis for the exercising jurisdiction. See Elelu-Habeeb & Anor Vs A.G. Federation & Ors (2012) LPELR – 15515 (SC); Sun Insurance Nig. Plc Vs Umez Engineering Construction Co. Ltd (2015) LPELR – 24737 (SC). – Per I. G. Mbaba, JCA

 

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JURISDICTION – JURISDICTION WHERE A TRANSACTION IS BIRTHED AND CONSUMED IN THE SAME LOCATION

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Going by the above facts of the case and provisions of the Kano State High Court (Civil Procedure) Rules, the Appellants were not right to insist that the trial Court was wrong to dismiss their preliminary objection challenging the jurisdiction of the trial Court; their claims, that:

(1) Appellants reside and carry on business in Lagos, Abjua and Canada outside the jurisdiction of the High Court;

(2) The subject matter which gave rise to the commencement of the Suit is in Lagos State;

(3) The delivery of the goods would take place at Lagos Wharf, were not capable of robbing the trial Court of jurisdiction to hear and determine the Suit, as it was obvious that the transaction was birthed and consumed in Kano State, where the parties met to agree on the contract and the Respondent paid the deposit, and where performance was also expected. See the case ofInternational Tobacco Co. Ltd & Anor Vs Sea Mountain Co. Nig. Ltd (2017) LPELR – 43570 CA. – Per I. G. Mbaba, JCA

 

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SUMMARY JUDGMENT – SUMMARY JUDGMENT PROCEDURE – WHERE A RESPONDENT INTENDS TO DEFEND A SUIT FILED UNDER THE SUMMARY JUDGMENT PROCEDURE

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The provisions of Order 11 Rule 4 of the High Court Civil Procedure Rules of Kano State has already been analysed in this judgment, to the effect that:

“Where a party, served with the processes and documents referred to in rule 1, intends to defend the Suit, he shall, not later than the time prescribed for defence, file his statement of defence, depositions of his witnesses, the exhibits to be used in his defence and a written address in reply to the allegation for summary judgment.”

​That provision has been applied in many leading decisions, including the case of Maduike Vs Tetelis Nig. Ltd (2015) LPELR – 24288 (CA), where it was held:

“What then is the duty of the Court, the Plaintiff and the Defendant under the summary judgment procedure pursuant to Order 11? In this respect, I call in aid the opinion of my learned brother, Per Augie JCA in Emerald Garland Beverages Ltd & Anor Vs Maduechesi (2010) LPELR – 4104 at 18-21, when he stated: “Nonetheless, there are conditions to be fulfilled and procedures to be followed by the Plaintiff, the Defendant and the Judge. the Plaintiff must – a) Believe that there is no defence to his claim; b) File his statement of claim, the exhibits, the depositions of his witnesses along with his originating process; c) File an application for summary judgment; d) Support the application with an Affidavit; and e) File a written address in respect thereof where a Defendant intends to defend the Suit, He must file – a) His statement of defence; b) Depositions of his witness; c) Exhibits to be used in his defence; and d) A written address in reply to the application for summary judgment. Where it appears to a Judge that – a) A Defendant has a good defence, he may be granted leave to defend; b) the Defendant has no good defence, Judgment may be entered for the Plaintiff; c) The Defendant has a good defence to part of the claim, he may be granted leave to defend that part of the claim; d) The Defendant had no defence to other parts of the claim, judgment may be entered in favour of the Plaintiff for that part of the claim; e) Any of several Defendants has a good defence, he may be permitted to defend; and f) Any of the several Defendants has good defence, the Judge shall enter Judgment against him.” – Per I. G. Mbaba, JCA

 

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COURTS – CONDUCT OF COURTS IN UPHOLDING THE RULES OF COURT

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It is true that the Rules of Court must be obeyed and observed, strictly, but it is also the law that, while observing and enforcing compliance with the rule of Court, the Court must not follow it, slavishly, to undermined adherence to the tenets of substantial justice and fair play. See the case of Alioke Vs Oye & Ors (2018) LPELR – 45153 (SC):

“… Our duty as an Apex Court is to do substantial, justice-stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and context. We are not judicial technicians in the workshop of technical Justice. The jurisprudence or logic of our reasoning is and as humanly possible, would be devoid of technicalities. See the case of OYEYEMI & ORS VS OWOEYE & ANOR (SUPREME COURT SUIT NO. SC.102/2013). See also MAKERI SMELTING CO. LTD VS ACCESS BANK (NIG.) PLC (2002) 7 NWLR (Pt.766) 411 at 476- 417. The need to do substantial justice and avoid delving into the error of technicalities is well settled. Even in cases where errors of omission or commission called blunders have been made, it is unjust to hold that because blunders have been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. See also AJAKAIYE VS IDEHIA (1991) 8 NWLR (Pt.364) 504, ARTRA IND. LTD VS NBC (1997) 1 NWLR (Pt.483) 574, DAKAT VS DASHE (1997) 12 NWLR (Pt.531) 46, BENSON VS NIGERIA AGIP CO. LTD (1982) 5 S.C. 1.” Per BAGE, JSC (Pp. 28-29, para E) Frozen Foods Nig. Ltd & Ors Vs Estate of Oba John Agbola Ojomo & Ors (2022) LPELR – 57815 (SC):

“This is a Court of Justice and equity and it is its duty to ensure that substantial Justice is done at all times between parties. See Bello Vs. Attorney-General.,Oyo State (1986) 5 NWLR (Pt.45) 828, Ogunbi Vs. Kosoko (1991) 8 NWLR (Pt. 210) 511; Panache Communications Limited Vs. Aikhomu (1994) 2 NWLR (Pt. 327) 420; Osayanbi Vs. Lasisi (2019) 17 NWLR (Pt. 1701) 217”. Per OKORO, JSC (P. 17, paras. B-D) In the case of INEC Vs Mbawike (2017) LPELR – 41623 (CA), we held:

“We have stated, several times, that the Rules of Court are to be obeyed, but that the Court cannot be enslaved by its Rules to act against the dictates of reason, justice and fair play, as the interest of substantial justice must be enthroned above the rules of technicalities, which work injustice and oppression. See the case of ACN Vs Lamido (2011) LPELR – 9174 (CA), where my lord, Ogbuinya JCA, said:  “Where a strict adherence to the rules of Court or practice directions will constitute an albatross along the terrain of dispensing substantial justice, the Courts are mandated, by judicial authorities, to tilt towards the path of justice. The provisions of rules of Courts, afortiori practice directions, cannot be employed by the Courts to choke, annihilate, asphyxiate and strangle justice, which is man’s greatest interest in the passingearth. See UTC NIG Ltd Vs Pamotei (1989)2 NWLR (pt.103)244; Duke Vs Akpabuyo LG (2005)9 NWLR (pt.959)130; Dingyadi vs INEC (No.1) (2010)18 NWLR (pt.1224)1; See also the case of GOV. of Imo State & Ors vs E.F. Network Nig Ltd & Anor. (2016) LPELR – 40820 (CA).”

See also National Trucks Manufactures Ltd Vs Fobur (2022) LPELR – 57474 CA: We have stated, several times, that the Rules of Court are to be obeyed, but that the Court cannot be enslaved by its Rules to act against the dictates of reason, justice and fair play, as the interest of substantial justice must be enthroned above the rules of technicalities, which work injustice and oppression. See the case of ACN Vs Lamido (2011) LPELR – 9174 (CA), where my lord, Ogbuinya JCA, said: "Where a strict adherence to the rules of Court or practice directions will constitute an albatross along the terrain of dispensing substantial justice, the Courts are mandated, by judicial authorities, to tilt towards the path of justice. The provisions of rules of Courts, afortiori practice directions, cannot be employed by the Courts to choke, annihilate, asphyxiate and strangle justice, which is man’s greatest interest in the passing earth. See UTC NIG Ltd Vs Pamotei (1989)2 NWLR (pt.103)244; Duke Vs Akpabuyo LG (2005)9 NWLR (pt.959)130, Dingyadi vs INEC (No.1) (2010)18 NWLR (pt.1224)1. See also the case of GOV. of Imo State & Ors vs E.F. Network Nig Ltd & Anor. (2016) LPELR – 40820 (CA), where we held:”…

The Rules of Court are hand maids of the law to help the Court to do justice to the parties. It is not meant to be turned into a master or monster that works injustice, denying the parties of the rights given to them by the substantive law. See Ayoade Vs Spring Bank Plc (2013) LPELR – 20763; (2014) 4 NWLR (pt.1396) 93. – Per I. G. Mbaba, JCA

 

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SUMMARY JUDGMENT – RULES GOVERNING SUMMARY JUDGMENT PROCEDURE – MEANING OF SUMMARY JUDGMENT – WHERE A DEFENDANT DISCLOSES A DEFENCE ON THE MERIT

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The Rules governing summary judgment or undefended list procedure, permits the Judge to be alert, to refuse the waste of judicial time by a defendant, who simply wants to drag the process, when it is obvious, he has no defence to the claim of the Plaintiff. But, at the same time, where the case is not a simple money demand, but one opened to controversy and disputing of the monetary claims of the Plaintiffs, and disclosing some possible defence, on the merits, the Court cannot close the door of justice against the defendants, on the ground of non-strict compliance with the Rules, and has to transfer the case to the general cause list, for fair hearing, on the merits upon the pleadings or affidavits, filed by the parties. See the case ofUBA Plc & Anor Vs Jargaba (2007) LPELR – 3399 (SC):

“A summary judgment is a procedure for disposing with dispatch, cases which are virtually uncontested. It also applies to cases 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 mere purpose of delay. It is for the plain and straight forward, not for the devious and crafty. See: Sodipo v. Lemninkainen (1986) 1 NWLR (Pt. 15) 220; Adebisi Macgregor Ass. Ltd. v. N.M.B. Ltd. (1996) 2 NWLR (Pt. 43) 378, (1996) 2 SCNJ 72 at page 81." Per MUHAMMAD, JSC (Pp. 24-25, paras. G-B) See also Sule Vs Sule & Ors (2021) LPELR – 55788 (CA):

“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 Jigawa 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 Organisation Ltd (2007) 14 NWLR (Pt 1055) 441, Matab Oil & Gas Ltd Vs Fundquest Financial Services Ltd (2020) 17 NWLR (Pt 1752) 1.” Per ABIRU, JCA (Pp. 21-22, paras. D- The above decisions are to be balanced with those defence is disclosed, to warrant transferring the case to the general cause list, for hearing of the case on the merits. See the case ofGombe State C-Op. Saving & Loans Ltd Vs GTB Plc & Ors (2021) LPELR – 54597 (CA):

“If the Defendant discloses a defence on the merit, that is to say the defence raises triable issues or there are dispute of fact and law that will affect the claim of the Plaintiff, the Court will be cautious not to enter judgment on the undefended list for the Plaintiff. At this stage, the main process in the front burner for consideration is the Defendant’s affidavit in support of the notice of intention to defend. This is what matters at this stage. The question a Court will ask itself is, whether the affidavit discloses some issues of dispute in law and fact which affects the claim of the Plaintiff. If the answer to that question is in the affirmative, the case will be transferred to the general cause list for a full blown trial and hearing to enable parties call witnesses passing them through the process of examination in chief, cross-examination and re-examination. This will clear all the cobwebs surrounding the case and explain all the issues that are not clear. I must emphasize again that, the issues that need to be interrogated in the full trial must be issues that has direct relationship with the claim of the Plaintiff. To cap this little excursion into the law as stated above, suffice to say that where there are serious disputes in the affidavit in relation to the claim, where there are disputes of law and fact, where there are triable issues or where the affidavit disclose facts which challenges the claim in such a way that calls for explanation or interrogation, a Court should be cautious in entering judgment but rather be prepared to err on the side of caution by transferring the cause to the general cause list. In Massken Nig. Ltd. vs Amaka (2017) 16 NWLR (pt 1592) 438, the apex Court held: “I need to re-emphasis the point that the Undefended List Procedure is fashioned to take care of cases relating to simple, uncontested debt or liquidated money demand or monetary claims. Where, however serious disputes arose in the affidavits on points of law relating to the claim(s), the trial Court ought to exercise caution in entering judgment under the Undefended List Procedure and should transfer the matter from the Undefended List to the General Cause List to be dealt with by pleadings etc” Similarly, the apex Court dealt with the general principles on undefended list and circumstances when matters in undefended list can be transferred to the general cause list. It was further held:

In the case of University of Nigeria v. Orazulike Trading Co.(1989) 5 NWLR (pt.119) 19 @ 29, it was held that where a defendant raises a substantial question of fact (as in the instant case) which ought to be tried, leave should be granted to him to defend. See also the cases of Saw v. Hakim (1889) 5 TLR 72; Ward v. Plumbley 6 TLR 198; Ray v. Baker 4 EX D 279 referred to in Adebisi Macgrgor Associates Ltd. v. Nigeria Merchant Bank Ltd. (supra) and NAM Ltd. v. Fetty Kene Nig. Ltd. (1995) 4 NWLR (pt.357) 100. Even in the case or UTC v. Chief Pamotei & Ors. ​(supra), the following inter alia, appear, “Even where a defendant neglects (I will add fails) to deliver a notice and an affidavit as required by the rules, may on an affidavit disclosing a defence on the merits and satisfactory explaining his neglect, be let in to defend on term”. Per TOBI, JCA (Pp. 33-39, paras. B-A) – Per I. G. Mbaba, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Kano State High Court Civil Procedure Rules, 2014

 

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