CORAM
PARTIES
PRINCE UCHE NWOLE APPELLANTS
SKYE BANK PLC RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiff/Respondent instituted an action at the High Court of Lagos state under summary judgment procedure against the Defendant/Appellant to recover a loan facility of N26 million Naira with a bridging facility of N39 million. The trial court considered the action and entered summary judgment against the Appellant but was silent on the counter claim for the value of the property that served as collateral security for the loan. The Appellant applied to the court below to set aside the summary judgment on grounds of breach of his right to fair hearing in that it was made in the absence of the Appellant and without affording him the opportunity to be heard; and that it was obtained by fraud arising from the role played by the Firm of Solicitors acting for the Respondent whose head of law Firm was at all material times a major shareholder, director and subsequently the Chairman of the Respondent and personally guaranteed the loan and had undertaken to dispose of the property of the Appellant used to secure the loan as collateral security on behalf of the Appellant for a warranted sum of N100 million and apply the proceeds to liquidate the loan upon which title documents with the power of attorney were deposited with the Respondent. The sale was eventually done in the sum of N67 million below the warranted N100 million but the Respondent’s solicitor kept the proceeds of the sale and refused to apply it to liquidate the loan. Rather the Respondent decided to bring the action claiming the entire loan and accrued interest contending that the Appellant had not made any payments while concealing the fact of the money withheld by the Respondent’s solicitor. The trial court refused to set aside the summary judgment but granted the application of the Respondent for attachment and sale of the property in question in satisfaction of the judgment. The trial court reasoned that the summary judgment was on the merit and could not be set aside because the statement of defence was considered before summary judgment was entered and that the judgment was not tainted with fraud. Dissatisfied with the decision of the trial court, the Appellant has filed a notice of appeal on the grounds that the judgment was tainted by fraud on the part of the Respondent and its Firm of Solicitors.
HELD
Appeal Dismissed
ISSUES
Whether the judgment was obtained by default with a right in the appellant to apply to the court to set aside having shown good cause for such? Whether the judgment was tainted by fraud on the part of the respondent and its firm of solicitors compelling its being set aside ex debito justitiae?”
RATIONES DECIDENDI
SUMMARY JUDGMENT PROCEDURE – WHETHER THE UNDEFENDED LIST PROCEDURE AND SUMMARY JUDGMENT PROCEDURE ARE SIMILAR
“The Supreme Court case of Ifeanyichukwu Trading Investment Ventures Ltd. and Anor. v. Onyesom Community Bank Ltd. (2015) 17 NWLR (pt.1487) 1 at 31 – 32 decided it that the undefended list procedure and summary judgment procedure are the same and judgment obtained under any of the procedure is a judgment on the merit, not a default judgment, and may only be set aside on grounds of fraud and/or denial of fair hearing. The Supreme Court went further to explain that the summary judgment procedure developed in England in the 1880’s for speedy dispensation of justice in disputes over business transactions and that as both procedures are designed to achieve the same purpose or objective some states in the Federal Republic of Nigeria like Lagos State, for instance, make provision for only summary judgment procedure in the rules of the court and have removed the undefended list procedure from the rules of the court showing both procedures are the same and need not be duplicated in the rules of the court. See also Akpan v. Akwa Ibom Property and Investments Company Ltd. (2013) 12 NWLR (pt.1368) 377 at 399 – 400, Bona Textiles Ltd. and Anor. v. Asaba Textile Mill Plc (2013) 2 NWLR (pt.1338) 357 at 372 – 373, Thor Ltd. v. F.C.M.B. (2005) 14 NWLR (pt.946) 969 and Grand Systems Petroleum Ltd. and Anor. v. Access Bank Plc (2015) 3 NWLR (pt.1446) 317 at 352, Sanusi v. Cotia (2000) 6 S.C. (pt.111) 43 at 53, Bank of the North Ltd. v. Intra Bank S.A. (1969) 1 All N.L.R. 91 at 95, Owena Bank (Nig.) Ltd. v. Akintuyi (1992) 8 NWLR (pt.259) 347.”
RECORD OF THE COURT –PARTIES AND THE COURT ARE BOUND BY THE RECORD OF THE COURT
“Both parties and the court are bound by the record of the court which is presumed correct until the contrary is proved. No court has jurisdiction to go outside the record and arrive at conclusions not supported by the record vide Texaco Panama Inc. v. S.P.D.C. Ltd. (2002) 5 NWLR (pt.749) 209, Garuba v. Omokhodion (2011) 15 NWLR (pt.1269) 145. And as was stated by the Supreme Court in Bamidele Patrick v. The State in the yet unreported Appeal case No. SC. 384/2013 delivered on 23-02-18 per the lead judgment prepared by Augie, J.S.C., (concurred in by Rhodes-Vivour, Akaahs, Okoro and Galinje, JJ.S.C.) no arguments/ submission in a brief of argument, howsoever ingenious, can make any difference to the contents of the record of appeal. See also Lawal v. State (2012) 21 WRN 100.”
PRINCIPLE OF FAIR HEARING – APPLICABILITY OF THE CONSTITUTIONAL PRINCIPLE OF FAIR HEARING
“The constitutional principle of fair hearing is for both parties. It is not a one-way traffic. It is a double-edged facility for the claimant to be heard timeously and for the defendant to avail himself of the opportunity extended to him by the court to present his own side of the case vide Newswatch Communications Ltd. v. Attah (2006) 12 NWLR (pt.993) 144 at 170 – 171, Eze v. The State (2017) 15 NWLR (pt.1589) 433.”
RIGHT TO FAIR HEARING – WHETHER A PARTY CAN BE HEARD TO COMPLAIN THAT HIS RIGHT TO FAIR HEARING HAS BEEN INFRINGED UPON WHERE HE FAILS TO TAKE ADVANTAGE OF THE OPPORTUNITY TO PRESENT HIS CASE
“Having been afforded equal opportunity to present his case the appellant cannot be heard to complain that his right to fair hearing has been infringed. For it is not the duty of the court to compel a reluctant party to attend to his case. A party who refuses to be abreast of the time-table of his case in court and does not take advantage of the opportunity given him to present his case cannot be heard to complain that the case was heard in his absence; consequently, I am of the considered opinion that the application for summary judgment was not heard in the absence of the appellant as the appellant knew of the date of adjournment of the proceedings on that date through his learned counsel who was in court at the time the application was adjourned for hearing on the next date it was taken by the court below (Ishola, J.) vide Mfa and Anor. v. Inongha (2014) 4 NWLR (pt.1397) 343, Kwara State Ministry of Health v. M.I. Electrical Enterprises (2012) 3 NWLR (pt.1287) 258, Pam and Anor. v. Mohammed and Anor. (2008) 16 NWLR (pt.1112) 1 at 48, Ndu v. State (1990) 7 NWLR (pt.164) 550 at 578 – 579. The Commissioner of Police, Adamawa State v. Saratu and Anor. (2015) 3 NWLR (pt.1446) 276, Eke v. Ogbonda (2006) 18 NWLR (pt.1012) 5 NWLR (pt.1346) 144, Aina and Anor. v. Obabiolorunkosi (1986) 2 NWLR (pt.22) 316.”
UNETHICAL CONDUCT OF COUNSEL – ATTITUDE OF THE COURT ON UNETHICAL CONDUCT OF COUNSEL
“The alleged fraud principally centres on the alleged unethical or unprofessional conduct of the respondent’s solicitor. It is a cardinal principle of the administration of justice that the ills, sins or transgressions of counsel are not visited on the litigant. On no account should a litigant suffer for the shortcomings of his counsel.
Whether the respondent’s solicitor owns the largest number of shares of the respondent would not make him the owner of the respondent as to attribute the alleged unethical professional conduct of the respondent’s solicitor to the respondent vide Orji v. Zaria Ind. Ltd. (1992) 1 NWLR (pt.216) 124 at 142 per the lead judgment of Wali, J.S.C.”
LEGAL PERSONALITY – CONCEPT OF LEGAL PERSONALITY
“Similarly, the fact that the respondent’s solicitor was at all material times a director and later chairman of the respondent does not transform into his ownership of the respondent. Being an incorporated body the respondent is a distinct legal personality (artificial personality) from the respondent’s solicitor even if he owns majority shares of the respondent and/or was at all material times a director and later chairman of the respondent vide Salomon v. Salomon and Co. Ltd. (1897) A.C. 22.”
OBLIGATION OF LEGAL PRACTITIONERS TO THEIR CLIENT –RULE 23 OF THE RULES OF PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS 2007
“For elucidation Rule 23 of the Rules of Professional Conduct for Legal Practitioners 2007 provides –
“1.A lawyer shall not do any act whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client.
2.Where a lawyer collects money for his client, or is in a position to deliver property on behalf of his client, he shall promptly report, and account for it, and shall not mix such money or property with, or use it as, his own”
It follows from the tenor of Rule 23 (supra) that it does not control the conduct of litigants but applies to the obligation/duty owed legal practitioners to their clients. The enforcement of Rule 23 is also done by a different statutory body (The Legal Practitioners Disciplinary Committee).”
JUDGMENT OF COURT- DISTINCTION BETWEEN A SUMMARY JUDGMENT AND DEFAULT JUDGMENT
“The judgment under Order 11, Rule 5(2) is different from a default judgment provided for under Order 10, Rules 3 and 5 of the same Rules which is entered in default of appearance by a Defendant. While a summary judgment under Order 11, Rule 5(2) is a judgment entered after a consideration of a defence filed by a Defendant and so one on the merit that can only be set aside on appeal, default judgment under Order 10, Rules 3 and 5 entered on the basis of the originating processes of a Claimant only and in default appearance by a Defendant, is not on the merit and can be set aside under Rule 11 of the Order 10, by the lower court. Veepee Ind. Ltd. v, Cocoa Ind. Ltd. (2008) 13 NWLR(1105) 486; Adeyemi-Bero v. Omotosho (2008) 15 NWLR (1111)576; Lewis v. UBA, Plc (2006) 1 NWLR (962) 546; Ogolo v. Ogolo (2006) 5 NWLR(972) 163; Oceanic Bank Int. Plc. V C.S.S. Ltd (2012) 9 NWLR(1305) 397.
PRINCIPLE OF FAIR HEARING – DUTY ON PARTIES AND COUNSEL NOT TO RELY ON THE PRINCIPLE OF FAIR HEARING MERELY ON UNFOUNDED ALLEGATIONS
“I would restate the warning of the apex Court in the case of Newswatch Comm. Ltd v, Attah(cited in the lead judgment) that let parties and their Counsel who have bad cases and nothing useful to urge before the appellate Courts, leave that principle of fair hearing alone because it does not avail them merely on unfounded allegations. See also Adebayo v. A. G. Ogun State (2008)7 NWLR(1085) 201@221-2; Tetrazzim Foods Ltd v. Abbacon Inv. Ltd. (2015) LPELR-25007; Okike v. LPDC(2005)SCNJ,596.(2005)7 SC(Pt. II) 75.”
RIGHT TO FAIR HEARING- WHETHER A PARTY WHO HAS NOT BEEN DILIGENT IN HANDLING HIS CASE CAN BE HEARD TO COMPLAIN OF LACK OF FAIR HEARING
“A party who has been afforded opportunity to make his case cannot be heard to complain that his right to fair hearing has been infringed. See INEC V Musa(2003) LPELR-1515(SC).
A party not diligent in the handling of his case cannot later be heard to complain that the case was heard in his absence. Once both sides has been given the necessary time to make out their case, the cry of lack of fair hearing is baseless and holds no water. In the case of INEC & Ors v African Democratic Congress & Ors(2008) LPELR-4312(CA) it was held that:
“…the attributes of fair hearing presupposes that the court or tribunal shall hear both sides not only in the case but also in other material issues before reaching a decision in the case which may be prejudicial to any party in the case. The shall give equal treatment, opportunity and consideration to all concerned.”
CASES CITED
None
STATUTES REFERRED TO
Rules of Professional Conduct for Legal Practitioners 2007|