Llyods Development Company Limited & Anor V. Bullion Trust & Securities Limited (2016)
LawGlobal-Hub Lead Judgment Report
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
By a Writ of Summons and Statement of Claim dated 13th September 1993, the Respondent herein as plaintiff, commenced an action against the Appellants as Defendants for the following reliefs:-
(a) The sum of N25,021,799.20 (Twenty-Five Million, Twenty One Thousand, Seven Hundred and Ninety Nine Naira, Twenty Kobo) representing the total amount outstanding against the 1st Defendant in respect of the short term credit facilities granted to the 1st Defendant by the Plaintiff at the 1st Defendants request which facilitates the 2nd Defendant giving personal undertaking to be jointly and severally liable to re-pay and which the 1st Defendant has failed, neglected and/or refused to pay and discharge, despite repeated demands.
(b) Continuing interest at the rate of 13% per month from the 27/7/93 until the entire amount outstanding is discharged.
(c) An order of specific performance of the Agreement between the plaintiff and the 1st Defendant to create a legal mortgage in favour of the plaintiff over all the piece of land- situate along Toyin Street, Ikeja, Lagos in
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the Ikeja Area of Lagos State of Nigeria containing an area of approximately 1.231 Hectares more particularly delineated and shown verged RED on Survey plan No. LS/D/LKJ 478 annexed to the Certificate of Occupancy No. 15/15/1988A.
(d) Further reliefs and the cost of this action.
Pleadings were filed and exchanged by the parties. Subsequently, the Respondent filed an application for summons for Judgment dated 11th January 1994 whereupon the Defendants/Appellants filed a counter-Affidavit in response. Upon hearing the application, the lower Court entered judgment in the Respondent’s favour on admission by the Appellants in the sum of Fifteen Million, Five Hundred thousand Naira only (N15,500,000.00). The Court thereupon set down the rest of the Respondent’s claim for trial.
Naturally aggrieved with the decision of the lower Court, the Appellants filed a Notice of Appeal dated 27th December, 2000 seeking that the judgment of the lower Court delivered on 8th December, 2000 be set aside.
In compliance with the Rules of this Court, Briefs of Argument were filed and exchanged by counsel for the respective parties. Appellants’ brief prepared by
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Yinka Muyiwa of Yinka Muyiwa Chambers is dated and filed 4th June, 2012 but deemed 13th April, 2016. No Reply Brief was filed. Meanwhile, three issues were formulated for determination of this appeal by the Appellant. They are:
1. Whether on the averments in the Statement of Defence and Counter-Claim the Appellants did not disclose such facts as may be deemed, sufficient to defend the action.
2. Whether the trial Judge was right in law when he based his decision solely on the Affidavit evidence of the Respondent, where however the Deponent failed to disclose the grounds of his belief and source of his information vis-a-vis Section 88 and 89 of Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990
3. Whether Exhibits M08 and M09 could constitute an admission of liability on the part of the Appellants and whether the said Exhibits are inadmissible in evidence as an admission of liability on the part of Appellants against their averments in their Statement of Defence and Counter-Claim.
The Respondent also caused a Brief of Argument to be filed on their behalf by Oyetola Oshobi, Esq.; Yakubu Galadima Esq., of Babalakin & Co.
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Though dated and filed on 3rd November, 2014, it was deemed properly filed on 13th April, 2016. Two issues were nominated by counsel for the determination of this appeal thus:
1. Whether, considering the facts of this case and the exhibits before the lower Court, the Respondent was entitled to judgment on admission.
2. Whether the learned trial judge’s decision was founded on admissible evidence.
As evident above, counsel to the respective parties nominated differing issues for the determination of this appeal. However, I must say that the two issues nominated by the Respondent are apt for the determination of this appeal as they comprehensively cover those raised by the Appellant. Therefore, the issues identified by the Respondent shall be-adopted anon, with issues one and three of the Appellant taken with the Respondent’s issue one while issue two of the respective parties shall be taken together.
Submitting on issue one, Appellants’ counsel contended that the facts of this case did not and cannot be said to fall under the undefended procedure rules because the Appellants did not put forward enough and sufficient material facts which
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suggest that the Appellants should be given an opportunity to defend the Respondent’s claim. He referred to Order 10 of the High Court of Lagos State (Civil Procedure) Rules, 1972. It is the submission of counsel that the Appellants did not deny or rebut the claims of the Respondent but they also went to the extent that they exhibited documents to show that the Appellants are not liable to the Respondent’s claims and that the Appellants went further and shifted the alleged liability to some third Party, in lieu of the tripartite loan agreement between the parties. He further submitted that mere deposit of Appellants’ Certificate of Occupancy over the demised premises was to create an equitable mortgage; that the Appellants have, satisfied the provision of Order 10 Rule 3(1) of the 1972 Rules that they have defence to the claim of the Respondent. He relied on THOR LTD v FIRST CITY MERCHANT BANK LTD [2000] 4 NWLR (PT. 652) 274 at 285 – 286, Paras A – C; NISHIZAWA LTD v JETHWANI (1984) 12 SC 234 to submit that after ascertaining that the Respondents has compiled with Order 10 Rules 1 and 2 by examining his claim and Affidavit, it must also be ascertained that the
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Appellants meet Order 10 Rules 1 and 3, scrutinizing to see if any triable issues are raised by the Affidavit of merit and Statement of Defence. Counsel argued that what a Court should be looking for when considering summons for judgment under Order 10 is whether the Appellants have disclosed by their Affidavit such facts as may be deemed sufficient to entitle them to defend the action. He cited MACCAULAY v NAL MERCHANT BANK LTD [1990] 4 NWLR (PT. 144) 283 before submitting that the Appellants placed before the lower Court in their counterclaim that their responsibility to refund the loan had been passed on to the syndicate of the banks contracted to pay the loan, that is, First African Trust Bank Ltd, Century Merchant Bank Ltd, Eko International Bank of Nigeria Plc, and Commercial Bank of Africa Ltd.; that the documents presented by the Appellants in their counter affidavit and counter claim call for assessment and evaluation in respect of the claimant’s claim. It is also the submission of counsel that the summary of counsel that the ultimate dictates of Juctice must override technicalities and the summary trial procedure established to prevent in Juctice to
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a deserving Plaintiff must not allowed to become a vehicle for in Juctice against the deserving Defendant. He cited AGWAHEME v EZE [1990] 3 NWLR (PT. 137) 242 at 292, Paras E – F. Counsel submitted that the Appellants have put sufficient material facts that cast doubt on the Respondent’s claim in their counter-claim among other processes clearly manifesting their intention to defend the action solely on merit. He cited JIPREZE v OKONKWO [1987] 3 NWLR (PT. 62) 737; MALEY v. ISAH [2000] 5 NWLR (PT. 658) 651 at 669, Paras G – H. counsel concluded on this issue that it will be unfair to shut out the Appellants from putting forward their defence against allegations made against them in face of the weight of documents at their disposal to prosecute their defence, most especially Exhibits 3,4,5 and 6 respectively.
On issue three, citing DARAMOLA v A-G ONDO STATE (2000) 7 NWLR (PT. 665) 440 at 474, Paras F-G, learned counsel for Appellants submitted that facts admitted need no further proof. He submitted that it was controverted in the Appellants Affidavit to show cause that it was their belief that the syndicate of the banks involved would pay the loan
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on their behalf and in total ignorance of tripartite agreement executed between the parties in respect of the said loan. He referred to Section 24, 109 and, 132(2) of the Evidence Act. citing AKANBI v ALATEDE (NIG) LTD [2000] 1 NWLR (PT 639) 125 at 140, Paras D – E, he submitted that the Appellants who debunked the intent and purpose of the Exhibits M08 and M09 should have been given an opportunity of trial where they could be tested during the cross-examination as to the veracity of the said Exhibits He further submitted that it will amount to denying the Appellants fair hearing if they were not given opportunity to clear the area alluded to in the instant case. He cited FRANCIS v OSUNKIRO [2000] 7 NWLR (PT. 666) 564 at 578, Paras E before concluding that the power conferred on the trial Court under Section 6(6)(b) and (c) of the Constitution to adjudicate between parties have been clearly eroded.
On issue one, Respondent’s counsel referred to Order 10 Rules 1 and 2 of the High Court of Lagos State (Civil Procedure) Rules, 1972; SHODIPO v LEMMINKAINEM [1986] 1 NSCC (PT. 1) 79 at 85 to submit that the object of the, procedure under Order 10 is to enable a
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litigant to obtain summary judgment without proceeding to trial. According to counsel, the decision on whether the plaintiffs action is amenable to summary trial is absolutely that of the Court. He cited DIAH NASR v ELEGBEDE (1980) 1- 3 CCHCJ 376; BARCLAYS BANK OF NIGERIA v NWIZUGBO (1980) 4 – 6 CCHCJ 75; OGBE v NNPC (1980) 4 -6 CCHCJ 75 and BOLAJI v BOLAJI (1981) 1 3 CCHCJ 258. He submitted that the Appellants by their Statement of Defence dated 15th November, 1993 and counter-Affidavit to the summons for Judgment dated 11th May, 1998 did not dispute the indebtedness and by their letter dated 20th May, 1993 and a Settlement Agreement between the Appellants and Respondent dated 28th May, 1993, the Appellants admitted the debt and agreed to a scheme of settlement. He relied on, A.T.M PLC v B.V.T PLC (2007) 1 NWLR (PT. 105) CA 259 at 285, Para B. Counsel referred to Order 10 Rules 1 – 3 (a) and (b) of Lagos Rules, 1972 as considered in MACAULAY v NAL (supra) and NISHIZAWA LTD v JETHWANI (supra) . He also cited U.T.C (NIGERIA) LTD v PAMOTEI (supra) to submit that the very nature of the order implies a procedure wherein a judgment could be given to the
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plaintiff without taking the defence of the defendant and that the intention of the provisions is not to impose an undue limitation on the discretion of a trial judge as to the materials and documents he will look at satisfy himself that a defendant has disclosed such facts as may be sufficient to entitle him to defend. He cited UNIBEN v KRAUS THOMSON ORGANISATION LTD (2007) ALL FWLR (PT. 362) 1910 at 1926 – 1927, Paras G B (CA). Further contended that mere general denials in pleadings are never sufficient traverse and amount to no denial at all, with the result that the particular pleaded facts remain unchallenged. He cited UBA PLC v CHIMAEZE (2007) ALL FWLR (PT. 364) 303 at 318, Paras A – B; 319 – 320, Paras H – A before submitting that the Appellants did not only fail in denying the debts, they also failed to offer any reasonable justification for the case to proceed to trial. Counsel concluded that there was no need for the trial Court to proceed with the trial of the admitted debts and that the Respondent was as a matter of established law entitled to judgment.
It is pertinent to state, albeit repetitiously, that the issue that calls for
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consideration is whether, considering the facts of this case and the exhibits before the lower Court, the Respondent was entitled to judgment on admission. It is the contention of the Appellant that the learned trial judge ought to have granted leave to it to defend the suit against it, having regards to the fact that it put forward enough and sufficient material facts which suggest that the Appellants has real defence to the action. Now, Order 10 of the High Court of Lagos State (Civil Procedure) Rules, 1972 (applicable to the instant case) provides:
1. “Where the Defendant appears to a Writ of Summons specially indorsed with or accompanies by a Statement of Claim under Order 4 Rule 4, the Plaintiff may on affidavit made by himself or by any person who can swear to the facts verifying the cause of action and the amount claimed (if, any liquidated sum is claimed) and stating that in his belief there is no defence to the action except as to the amount of damages claimed, if any, apply to a Judge in chambers for liberty to enter Judgment for such remedy or relief as upon the statement of claim the Plaintiff may be entitled to. The Judge thereupon, unless
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the Defendant shall satisfy him that he had good defence to the action on merit or shall disclose such other facts as may be deemed sufficient to entitle him to defend the action generally, may make an order empowering the plaintiff to enter such judgment as may be Just, having regard to the nature of the remedy or relief claimed;
2. The application by the Plaintiff for leave to enter final Judgment under Rule 1 of the Order shall be made by summons returnable in Chambers not less than four clear days after service, accompanied by a copy of the affidavit and exhibits referred to therein.
3. (a) The defendant may, show cause against such application by affidavit or the Judge may allow the defendant to be examined upon Oath.
(b) The Affidavit shall state whether the Defendant alleged, goes to the whole or part only (if so) to what part of the plaintiff’s claim.
(c) The judge may if he thinks fit order the Defendant or in (a) the case of a corporation, any officer thereof, to attend and be examined upon Oath to produce any leases, deeds, books, or documents, or copies of extracts therefrom.
The scope and niceties of summary
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judgment as encapsulated in the above provision of Order 10 has been subject to interpretation by the Supreme Court and this Court in a plethora of judicial authorities. See OKAMBAH LTD. v SULE [1990] 11 – 12 SC 47; (1990) LPELR 2422 (SC) UTC (NIG.) LTD v PAMOTEI [1989] 2 NWLR (PT. 103) 244; THOR v FCMB LTD [2005] 14 NWLR (PT. 946) 696. Faced with similar provision under Order 22 of the Kaduna State High Court (Civil Procedure) Rules, the Apex Court, per MUHAMMED, JSC in UBA v JAGARBA (2007) 11 NWLR (PT. 1045) 247; (2007) LPELR – 3399 SC, P. 14 held thus:
Summary judgments are resorted to by Courts and given to the plaintiff without the necessity of a plenary of an action. They are devices available for prompt and expeditious disposal of controversy without trial when there is no dispute as to either material fact or inferences as to be drawn from undisputed facts, if only question of law is involved.
At pages 24 to 25, the Learned Juctice of the Supreme Court continued:
“Order 22 Rule 3(1) of the Kaduna State High Court (Civil Procedure) Rules, is designed to relieve the Courts of the rigour of pleadings and burden of hearing
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tedious evidence on sham defences mounted by the defendants who have no defence and are just determined to dribble and cheat Plaintiffs out of reliefs they are normally entitled to. See: PLANWELL LTD V OGALA (2003) 18 NWLR (PT. 852) 478, (2003) 12 SCNJ 58 AT PAGE 68. 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…
As earlier noted, the Respondent as Plaintiff vide a summons for judgment dated 11th January, 1994 claimed, inter alia against the Defendant/Appellant, for “the sum of N25,021,799.20 (Twenty- Five Million, Twenty one Thousand, seven Hundred and Ninety Nine Naira, Twenty Kobo) representing the total amount outstanding against the 1st Defendant in respect of the short term credit facilities granted to the 1st Defendant by the plaintiff at the 1st Defendant’s request which facilitates the 2nd Defendant giving personal
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undertaking to be jointly and severally liable to re-pay and which the 1st Defendant has failed., neglected and/or refused to pay and discharge, despite repeated, demands”.
In a well considered Ruling, the learned trial judge held at page 152 of the record thus:
“Order 29 Rule 6 of the High Court of Lagos State Civil Procedure Rules 1994 states that –
Any party may at any stage of a cause or matter where admissions of fact have been made, either on the pleadings or otherwise, apply to the Court or a Judge in chambers for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the Court or Judge in chambers may upon such application make such order or give such judgment as the Court, or Judge in Chambers may think fit…. Once there are (sic) admission of fact the party who is supposed. to benefit from them can apply for judgment, and it does not matter whether the admissions are made in the pleadings or in any other document or prior or during proceedings. Now, the plaintiff relies on Exhibits M08 and M09 as amounting to an admission of
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indebtedness by the 1st defendant.
In Paragraph 1 of the affidavit to show cause the 2nd defendant Chief Feyi Winfuke describes himself as the Managing Director of the 1st Defendant. It was he who wrote Exhibit M08 to learned counsel for the plaintiff. It reads in part – “In view of the prevailing circumstances we have of the concluded private arrangements to pay the sum of N11.5m (Eleven Million five hundred thousand Naira only) as full and. final settlement of our indebtedness to Bullion Trust and Securities Ltd as previously agreed by the parties…
Exhibit M08 is dated 20/5/93.
Eight days later, on 28/5/93 the plaintiff and the 1st defendant executed a Settlement Agreement. It was the 2nd defendant who signed for the 1st defendant. The document supra is Exhibit M09. It states in part that between, 1990 and 1992, the Plaintiff advanced the sum of N6,569,117.15 to the 1st defendant. A fact admitted in Paragraph 12 of the affidavit to show cause and Paragraph 4 of the statement of claim.
As at 27/5/99 the sums outstanding was N19,188,283.31 and the parties agreed that the 1st defendant pay N15,000,000 in full and final settlement on
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or before 30/6/93…
Learned counsel for the defendants was of the view that Exhibit M09 cannot be enforced by the parties even if genuine. He did not say why. He also said that Exh. M09 can only be enforced by a fresh action.
I must state that there is no prescribed mode of applying for judgment on admission. A party may apply for judgment on admission by Motion supported by affidavit or by simply addressing the Court requesting that judgment be entered on admission contained in the pleading or some other document…
The Plaintiff was perfectly right to ask for judgment on admission by simply referring to Exhibit M09.
The Plaintiff is accordingly entitled to judgment on admission in the sum of N75, 500,000.00.”
It is obvious from the above reproduced portion of the Ruling of the lower Court that the learned trial judge merely considered the provisions of Order 29 of its relevant Rules in reaching its conclusion that the Respondent was entitled to judgment on admission in the sum of Fifteen Million, Five Hundred thousand Naira (N15,500,000.00) only vide Exhibit M09. It is instructive to note, as the learned trial judge rightly
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stated that by virtue of Order 29, the Respondent as plaintiff is not mandatorily required to apply to the Court or judge in Chambers for such judgment on admission. Indeed, Order 29 prescribes that “any party MAY at any stage of a cause or matter, where admissions of fact have been made, apply to the Court” for judgment on admission by the other party. More so, it is also evident that it is immaterial whether the admission was made on pleadings or otherwise.
Ipso facto, Section 19 of the Evidence Act, cap 112, Laws of the Federation of Nigeria, 1990 (applicable to the instant case) provides that “an admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or an relevant fact…” whereas, Section 20(1) is to the effect that “statements made by a party to a proceeding, or by an agent to any such party, whom the Court regards, in the circumstances of the case, as expressly or impliedly authorized by him to make them are admissions.” Thus, Section 26 states that admissions are conclusive proof of the matters admitted.
In the instant case, it is beyond doubt that Exhibit M09, the Settlement Agreement was
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executed by the Appellant as borrower and the Respondent as Financier, wherein the Appellant agreed to pay the sum of N15,500,000.00 as the outstanding amount due with respect to the debt owed by it to the Respondent. For better clarity, the relevant part of Exhibit M09 dated 28th May, 1993 reads:
“WHEREAS
(1) Between 1990 and 1992, and at the request of the Borrower, the Financier in its capacity, in its capacity as financial consultants to the Borrower, advanced various credit facilities to the Borrower in the aggregate sum of N6,596,117.15 (Six Million Five Hundred and Ninety Six Thousand, One Hundred and Seventy Seven Naira Fifteen Kobo) at various rates of interests, in respect of the Borrowers Waterides Recreational park Project.
(2) The Borrower has failed to repay the above stated sums when the same fell due for repayment such that as at 27th May 1993, the sum of N19,188,283.31 (Nineteen Million One Hundred and Eighty Eight Thousand, Two Hundred and Eighty Three Naira, Thirty One Kobo), was outstanding against the Borrower in favour of the Financier.
(3) The Borrower has proposed to pay and the Financier has agreed to accept
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the sum of N15,500,000.00 (Fifteen Million Five Hundred, Thousand Naira) in full and Final settlement of the outstanding sums due to the Financier on the terms and. conditions stated hereunder.
IT IS HEREBY AGREED AS FOLLOWS:
1. The Borrower shall pay the sum of N15,500,000.00 (Fifteen Million Five Hundred Thousand Naira) by bank certified cheque to the Financier on or before the 30th day of June 1993 in full and final settlement of the outstanding indebtedness of the Borrower to the Financier.
2. In consideration of the payment of the sum of N15,500,000. (Fifteen Million Five Hundred Thousand Naira) by the Borrower to the Financier, the Financier agrees to waive the balance of the outstanding debt against the Borrower as at 27th May 1993.
3. Upon receipt by the Financier of cleared funds in respect of the bank certified cheque referred to in Paragraph 1 above, the Financier shall:
3.1 Cause to be withdrawn the petition pending against the Borrower at the Federal High Court in Suit NO. FHC/L/CP/96/93.
3.2 Release to the Borrower, the title documents in respect of Borrowers property situate at 31/37 Toyin Street, Ikeja, Lagos
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which said documents had been deposited with the Financier as security for the credit facilities granted to the Borrower by the Financier…
It is apparent from the content of the settlement agreement reproduced above that the Appellant expressly agreed not only to that fact that the outstanding amount due as at 27th May, 1993 is N19,188,283.31 (Nineteen Million one Hundred and Eighty Eight Thousand Two Hundred and Eighty Three Naira Thirty one Kobo) but that it will, having regard to the consensus of the parties, pay the sum of N15,500,000.00 (Fifteen Million Five Hundred Thousand Naira) in full and final settlement of the outstanding sums due to the Respondent under the terms and conditions contained in the agreement. It is on the basis of this commitment that the Respondent as financier agreed to discontinue the pending action it had commenced against the Appellant and also release the title document with respect to the Appellant’s property that is in its custody.
I believe the fact and circumstance of the instant appeal is somewhat similar to that of the quite recent decision of this Court in MICHAEL ADEBOYE v STEVE BAJE (unreported
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Appeal No. CA/L/934/2014) delivered on the 10th day of March, 2016, where I observed thus:
“This is a case of admission against interest by the Respondent, which requires no further proof by the Appellant. It is trite law that an admission by a party against his own interest is at best the most appropriate evidence in favour of his opponent. In ATOBATELE ALI v. UBA (2014) LPELR – 22635, this Court, per AUGIE,: JCA; 39 B – E held it is presumed that no man would declare anything against himself unless it was true. See Eigbe v N.U.T [2008] 5 NWLR (Pt 1081) 604. Thus, a party is entitled to rely on his opponents admission as an admission against interest to defeat his opponent’s claim. See IPINLAYE II V OLUTOKUN [1996] 6 NWLR (PT. 453) 148SC …
See also ONYEGE v EBERE [2004] 13 NWLR (PT. 899) 20; OKUNADE v OLAWALE (2014) LPELR – 22739 (CA).
I adopt the above view as it applies to the instant appeal. The admission by the Appellant in the instant case based on the content of Exhibit M09 indicates an express obligation by the Appellant to pay to the Respondent the sum of N15,500,000.00 (Fifteen Million Five Hundred
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Thousand Naira). Therefore, I am of the firm view, that the learned trial judge was right to have awarded judgment on admission in the sum of in favour of the Respondent.
Issues one and three are resolved in favour of the Respondent.
On issue two, Appellants’ counsel submitted that the provisions relating to Affidavit evidence are clearly provided for in Section 78 to 90 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. It is the submission of counsel that the Respondent’s Affidavit in support of Application for Summons for Judgment dated 11th January, 1994, violated Sections 88 and 89 of the Act as the deponent failed woefully to reckon with and comply with the provisions in Paragraphs 6,7,8,9, 10, 11, 12, 15, 20, 24, 25, 27 and 28 of the Affidavit. He cited GUINEA INSURANCE PLC v MONARCH HOLDINGS [1996] 3 NWLR (PT. 436) 365; BROLO (NIG) LTD v NKWOCHA [1995] 9 NWLR (PT. 429) 361. It is the submission of counsel that since the Deponent therein was not an employee of the Respondent neither did he participate in the entire loan agreement, the facts deposed to are not within his personal knowledge, yet he refused to disclose the
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source of his information. He referred to Section 86 of the Act; 7UP BOTTLING CO. PLC v LSIRB [2000] 3 NWLR (PT. 650) 565. He further submitted that the Affidavits of the parties raised some conflicts which can only be resolved by the hearing of oral evidence from the deponents or call such any other witnesses as the parties may be advised to call. He cited AGWUEGBO v KOGOMA [2000] 14 NWLR (PT. 687) 252 at 270, Para A; JOSEPH FALOBI v ELIZABETH FALOBI (1976) 9 & 10 SC 1 at 15.
Responding on issue two, counsel submitted that the Appellants cannot maintain the Respondent’s Affidavit in support of the Summons for Judgment and the exhibits relied upon were not admissible. Referring to the decision of the trial judge at page 183 of the Record of Appeal; G.M.G LTD v N.S.P LTD [1982] 2 NWLR (PT. 55) SC 110, counsel submitted that the contention of the Appellant that the Affidavit in support of the summons for judgment was incompetent for not disclosing the ground of the deponent’s belief and the source of his information is both factually incorrect and untenable on legal authorities. He submitted that the Respondent’s affidavit in support clearly satisfied the
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requirements under Order 10 via Paragraphs 27 and 28 therein which only required that the affidavit should contain facts verifying the cause of action and that in the deponents belief there is no defence to the action. He further submitted that the provisions of Order 10 Rule 1 merely requires that the affidavit in support should be sworn to by plaintiff or by any person who can swear to the facts verifying the cause of action and that this provision clearly contemplates a Legal Practitioner involved in the prosecution. He relied on OJUGBELE v LAMIDI [1999] 10 NWLR (PT. 621) 167.
It is the further contention of counsel that the argument of the Appellants that some third parties would ultimately bear cost of repayment neither detracts from the bindingness of the exhibits nor absolves the Appellants of liability towards the Respondent in the absence of any prior agreement to the effect between the parties. He submitted that the Appellants unequivocally admitted their liability to the Respondent in their Statement of Defence which would constitute a valid basis for entering judgment on admission in favour of the Respondent. He relied on
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Section 251 of the Evidence Act, 2011; IDUNDUN v OKUMAGBA (1976) 9 – 10 SC 224 at 245; OKORO v STATE [1998] 14 NWLR (PT. 584) 207, Paras F – H; ASABA ILE MILL PLC v BONA ILE PLC [2007] ALL FWLR (PT. 364) 336 at 358 – 359, Paras F – B, to submit that by the facts of this case as presented to the lower Court, the learned trial judge was on firm ground when he held that the evidence available to him disclosed a clear case of admission of debt and that the Respondent was entitled to judgment accordingly.
I must say that the resolution of issue one in favour of the Respondent with respect to the conclusion that the learned trial judge, while merely construing the effect of the provision of Order 29, rightly held that the Respondent is entitled to judgment on admission with respect to the sum of N15,500,000.00 (Fifteen Million Five Hundred thousand Naira). In other words, Appellant’s liability based on Exhibit M09 is solely in the sum of N15,500,000.00 (Fifteen Million Five Hundred thousand Naira) only and nothing more. Perhaps, the learned trial judge noted at page 154 of the Record, “there is no prescribed mode of applying for judgment on admission. A
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party may apply for judgment on admission by Motion supported by affidavit or by simply addressing the Court requesting that judgment be entered on admission contained in the pleading or some other document. Therefore, it is safe to conclude that the lower Court did not ipso facto consider the depositions contained in the Respondents Affidavit in support of the summons for judgment in reaching its conclusion that the Respondent is entitled to judgment as per the amount admitted by the Appellant vide Exhibit M09. With respect to the un-admitted outstanding sum, the trial judge held at page 156 to 157 of the record of appeal thus:
Now, in an application for Judgment under Order 11 Rule 1 and 2 of the High Court Civil Procedure Rules 1994 the plaintiff seeks judgment in the early stages of an action on the basis that there is no triable defence. The defendant defends the application by deposing to counter affidavit or affidavit to show cause or averring to facts in a statement of defence that can prima facie afford a defence to the action…
Once the Court is satisfied that there is a fair and reasonable probability of the
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defendant having a bona fide defence it would grant leave to defend. The question the Court asks itself is whether what the defendants says is credible.
If it is not credible then there is no fair and reasonable probability of the defendant having a defence. Put in another way Judgment is obtained by the plaintiff without trial once the Judge is satisfied that there is no defence and no fairly arguable point to be urged on behalf of the defendant…
In this application the issue of 13% per month charged on the loan is hotly contested. See Paragraph 25 of the affidavit in support and Paragraph 21 of the affidavit to show cause. By virtue of Section 15 of Banking Act Cap 28 Laws of Federation 1990 charging of interest rates by financial institutions are not expected to be arbitrary,
Since the affidavits are in conflict on that crucial and material point only a trial would resolve it. Furthermore, in a letter dated 10/1/94 and another undated letter repayments were made by the 2nd defendant under the 1st defendants Legal Mortgage obligation to the Bank. Since the state of repayments is unclear ordering specific performance is unthinkable.<br< p=””>
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Finally, the affidavit in support of this application was deposed to by a Legal Practitioner.
Where a financial institution seeks summary Judgment the affidavit in support must be deposed to by a knowledgeable individual in the said Institution and not a Legal Practitioner who became aware of the facts by position in Chambers of counsel for the plaintiff.
In Barclays Bank PLC vs Piper 1995 The Times 31/5/95 it was held that an affidavit in support of an application for summary judgment was defective in that it failed to identify the individual in the plaintiff bank who was the source of the deponents (sic) information or belief…
A knowledgeable individual in the employment of the plaintiff is the proper person to deposed (sic) to affidavit supporting a claim and not a lawyer. For these reasons a fairly arguable point is easily urged on behalf of the defendant and so the defendants are given Leave to defend the outstanding claims of the plaintiff in this action….
It is obvious from the latter part of the above-reproduced judgment of the trial Court that although the learned trial judge did not expressly say so, he nonetheless
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considered and agreed with the argument of the Appellant’s counsel that the Affidavit in support of the Respondent’s summons for judgment is incompetent having been sworn by a lawyer – ‘a knowledgeable individual in the employment of the plaintiff/Respondent’. While I am of the view that the learned trial judge ought to have expressly stated in his Ruling that the Affidavit, having been found to be incompetent, is struck out, I am inclined to say that it is not of material significance that same was not done as the ultimate result is that the Defendant/Appellant is granted leave to defend the outstanding part of the claim, as the learned trial judge.
Moreover, having regard to the incompetent affidavit, I believe it is unnecessary for trial Court to have considered whether the Defendant/Appellant had put forward a defence against the claim of the Respondent. Indeed, as it is evident from the portion of the Ruling of the lower Court, the learned trial judge did not deem it necessary to so do. In the meantime, the affidavit having being declared to be incompetent by the trial judge, same is hereby struck out.
Meanwhile, the Respondent did not
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challenge the finding and holding of the Court that the Affidavit, in support of the summons for Judgment is incompetent, either via a cross-appeal or a Respondent’s Notice to vary. Therefore, it is not open for the Respondents counsel to argue that the Affidavit in support ‘was not only valid but met the requirement of the applicable Rules of Court’. To this extent, I am of the view that any reliance placed on the Affidavit in support remains a nullity having being based on an incompetent process. Thus, the trial Courts finding that there are conflicts in the incompetent Affidavit in support and the Counter-Affidavit cannot stand.
Nonetheless, I have earlier noted that the learned trial judgment did not consider nor rely on the depositions in the otherwise incompetent Affidavit in support in reaching the conclusion to grant the sum of N15,500,000.00 (Fifteen Million, Five Hundred Thousand Naira) only in favour of the Respondent based on the Appellant’s admission vide Exhibit M09. Therefore, the Ruling stands but I must quickly state that Appellant’s liability as per the admission made vide Exhibit M09 with respect to the sum of
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N15,500,000.00 (Fifteen Million, Five Hundred Thousand Naira) only is the amount admitted as owed as at 28th, May, 1993 and not beyond that time.
Issue 2 is resolved in favour of the Respondent.
On the whole, this appeal lacks merit and is hereby dismissed. The Ruling of the High Court of Lagos State, per Rhodes-vivour J. (as he then was) delivered on 8th of December 2000 is hereby affirmed. cost of N50,000.00 is awarded in favour of the Respondent.
Other Citations: (2016)LCN/8602(CA)
