Mr. Osa Osunde V. Ecobank Nigeria Plc (2016)

LawGlobal-Hub Lead Judgment Report

CHINWE EUGENIA IYIZOBA, J.C.A.

This is on interlocutory Appeal against the Ruling of the High Court of Lagos State delivered on the 19th day of October 2010. The Respondent herein as Claimant instituted an action in the High Court of Lagos State, Lagos Judicial Division against the Appellant as defendant on 20/01/10 claiming as follows:
i. The sum of N1,223,503,001.69 (One Billion Two Hundred and Twenty Three Million, Five Hundred and Three Thousand One Naira and Sixty Nine Kobo) being amount outstanding as at 30th November 2009 on the facility the sum of N1,000,000,000.00 granted to the Appellant?s company.
ii. Interest on the said sum of N1,223,503,001.69 at the agreed rate of 17% per annum till judgment is delivered and thereafter a post judgment interest rate of 10% per annum until the final liquidation of the judgment debt by the Defendant.
iii. The guaranteed costs of instituting and prosecuting this action, as assessed by the Respondent in the sum of N10 Million against the Appellant.
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Upon being served with the Respondent’s Writ of Summons, Statement of Claim, list of witnesses, witness

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depositions, exhibits and Motion on Notice for Summary Judgment, the Appellant, instead of filing his Statement of Defence, depositions of his witnesses exhibits to be used in his defence and a written brief in reply to the application for summary judgment as required by Order 11 Rule (4) (4) of the Lagos State High Court (Civil Procedure) Rules filed a Notice of Preliminary Objection dated 27/04/10 challenging the jurisdiction of the Court to hear the suit and sought an order striking out the suit. On the expiration of 42 days within which the appellant was to file his statement of defence, if any, the Respondent on 14/05/10 applied for the issuance of Pre-Hearing Notices and upon approval by the Court complete pre-hearing Information Sheet providing answers to the questions therein. On 21/05/10 the Appellant completed prehearing Information Sheet and provided answers to the questions therein. On 19/10/10 when the case come up for hearing, the proceedings of the court ran thus:
“Parties absent.
S. O. Ogunyemi appears for the Claimant.
E. Odeh appears for the Defendant.
Ogunyemi: We have filed pre-trial conference forms and the Defendant

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has filed answers to Them. I have an application for summary judgment dated 10/01/2010. The Defendant has filed a preliminary objection to this suit dated 27/04/10. We have responded to the Defendants application. About 30 or 40 minutes ago this morning the Defendant served me his reply to our own response.
I pray the Court to take both applications and deliver a single ruling.
Odeh: I am of the view that the matter be set down for pretrial conference.
Court: The purpose of the Rules of this Court is well stated in Order 1 Rule 1(2). It is to ensure the achievement of a fast, efficient and speedy dispensation of justice. Order 11 which provides for summary judgment does not envisage any pretrial conference. It is a summary procedure that does not even by its nature permit a statement of defence. The procedure in Order 11 is a question whether a defence should be entered. I do not agree with learned Defendant counsel that there should be any pretrial at this stage because there is not even a close of pleadings.
I agree with counsel for the Claimant that the application for summary judgment and the objection of this suit can be taken

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together. I shall hear the objection to this suit and then the application for judgment and deliver one ruling in respect of both applications.”

The Appellant herein claimed that the Honouroble Trial Judge without application by either party, suo motu dispensed with the mandatory requirement for Pre-Trial Conference and ordered that the two pending applications be argued immediately. Dissatisfied with this interlocutory ruling of the trial Court, the Appellant appealed against the ruling by a notice of appeal dated and filed on 1/11/10 with two grounds of appeal. Out of the two grounds of appeal , learned counsel for the Appellant E. Odeh Esq. distilled three issues for determination as follows:
1. Whether the provisions of Order 25 of the High Court of Lagos State (Civil Procedure) Rules 2004 provide for the mandatory holding of Pre-Trial Conference.
2. Whether the ruling of the Learned Trial Judge dispensing with Pre-Trial Conference, was made in disregard to the provisions of Order 25 of the High Court of Lagos State (Civil Procedure) Rules 2004 which provides for the mandatory holding of Pre-Trial Conference.
3. Whether the decision of

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the Learned Trial Judge to act outside the provisions of Order 25 of the High Court of Lagos State (Civil Procedure) Rules 2004 was in the interest of justice.
Chief Ajibola Aribisala, SAN for the Respondent adopted the issues formulated by the Appellant.
APPELLANT’S ARGUMENTS :
Issues 1 and 2 argued together:
Mr. Odeh after setting out the provisions of Order 25 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004 submitted that by the clear wordings of the provision especially by the repeated use of the phrase ‘shall’ Pre-Trial Conference is not discretionary but mandatory. Relying on the case of ATTORNEY-GENERAL BENDEL STATE V. ATTORNEY-GENERAL OF THE FEDERATION (1981) SC 1. He submitted that where the wordings of a statute or rule are clear and unambiguous, effect should be given to the ordinary clear and unambiguous meaning. Counsel referred to the reasons given by the learned trial judge for dispensing with pretrial conference and submitted that on the question of speedy disposal of the matter, the provisions of Order 25 limit Pre-Trial Conference to a three month period while the practice direction for fast track

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matters reduces the time limit for Pre-Trial Conference. Counsel submitted that from the records the matter was coming up before the Learned Trial Judge for the first time and that there was clearly no delay justifying the abrupt dispensation of Pre-Trial Conference suo motu by the Trial Judge.
Counsel further submitted that there is nowhere in the provisions of Order 11 or any other Order or rule of the High Court of Lagos State, (Civil Procedure) Rules 2004, where the requirement of Pre-Trial Conference is dispensed with. He posited that in any event, the application for summary judgment under Order 11 of the High Court of Lagos State (Civil Procedure) Rules 2004 was not the only application pending before the Learned Trial Judge; that there was also a Notice of Preliminary Objection pending at the same time which is on objection on points of law that falls within the actions to be taken by the Learned Trial Judge of the Pre-Trial Conference. Counsel cited Order 25 Rule 3 Sub-rule (f) of the High Court of Lagos State (Civil Procedure) Rules 2004 and submitted that the Notice of Preliminary Objection being on objection on point of law ought properly to

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have been taken of the Pre-Trial Conference; and that the Claimant?s application for summary judgment is an interlocutory application which also falls within matters to be dealt with at the Pre-Trial Conference as provided for in Order 25 Rule 1 (2) (a).

Issue 3
On issue three Mr. Odeh submitted that the decision of the Learned Trial Judge to dispense with Pre-Trial Conference was not in the interest of justice and resulted in a miscarriage of justice. Counsel posited that both parties, Claimant and Defendant, by the answers to question 10 in the Pre-Trial information Sheet agreed to explore amicable settlement of the case. He argued that the promotion of amicable settlement of a case or adoption of alternative dispute resolution is one of the major objectives of the innovative Pre-Trial Conference system of Justice. Counsel submitted that the option of amicable settlement was shut down and the parties shut out by the Order of the Learned Trial Judge. Counsel citing the case of OKORODUDU v. OKORODUDU (1977)3 SC 21 submitted that the Court will not take a point suo motu unless in the circumstances of the case justice demands it. He urged us to

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allow the appeal and set the suit down for Pre-Trial Conference.
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RESPONDENT’S ARGUMENTS :
Smart Iwuh Esq. who at the hearing of the appeal adopted the brief settled by Chief Ajibola Aribisala SAN in reply conceded that the Civil Procedure Rules of the Trial Court did make provisions for Pre-Trial Conferences in deserving cases where issues of facts and law are in contest between the parties. He submitted that this is aimed of narrowing down the issues of facts in dispute between the parties and to aid the Court in resolving interlocutory applications on questions of law as the justice of the case demands. He posited that the very essence of the Pre-Trial Conference is to decipher interlocutory issues and trivialities of facts from the main Trial of the case, when and if full Trial is necessary for the final determination of the case. Learned senior counsel set out the provisions of Order 25 of the High Court of Lagos State (Civil Procedure) Rules,2004 and submitted that the operation and conduct of Pre-Trial Conference is for matters envisaged to proceed to full trial where issues of fact may be in controversy and not for the special procedure under

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summary Judgment application. He submitted that the rule guiding the determination of summary judgment application under the Lagos High Court Rules is Order 11 of the High Court of Lagos State (Civil Procedure) Rules,2004 and that by virtue of Order 11, the procedure and steps to be taken for the just determination of the summary judgment application is clearly stated and do not by any stretch of imagination include a Pre-Trial Conference. Learned senior counsel set out in full the provision of Order 11 Rules 1- 5 of the High Court of Lagos State (Civil Procedure) Rules and submitted that the summary judgment procedure is a complete departure from the procedure for full Trial of an action. He cited various authorities that deal with the purpose of Order 11 which he argued is inter alia to rid the judicial system of unnecessary delay of justice and to prevent the defendant from filing a sham defence. Learned senior counsel submitted that under the provisions of Order 11, for a defendant to sway the mind of the Court and contemplate full trial to which Pre-Trial Conference is targeted, the defendant must have filed a statement of defence, wherein he is expected to

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join issues with the Claimant. It is the statement of defence and other processes as stated in Order 11 Rule 4 that the Trial Court is expected to consider vis-a-vis the statement of claim to draw his inference-whether the defendant has a good defence or a sham defence to warrant the discretion of the Court to grant or refuse leave to the defendant to defend the action. Counsel submitted that the defendant had not filed his statement of defence so that the question of pleadings closing could not have arisen.
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On issue 3, whether the decision of the Learned Trial Judge to act outside the provisions of Order 25 of the High Court of Lagos State (Civil Procedure) Rules 2004 was in the interest of justice, learned counsel submitted that the cause for determination before the Trial Court is a summary judgment application which by its nature has a special procedure under the Lagos State High Court Rules; and that Summary Judgment procedure is designed to fast track the speedy and expeditious hearing and determination of a suit that is lacking reasonable defence and/or adopted to prevent a sham defence from delaying the justice of a case. Learned senior counsel

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submitted that this action was instituted vide a writ of summons and statement of Claim; that the Claimant/Respondent also filed contemporaneously along with the originating processes on application for summary judgment upon the belief that the Appellant did not have a defence or any reasonable defence to the action. He posited that the Appellant, notwithstanding the abolition of demurrer proceedings by virtue of Order 22 of the Lagos State High Court (Civil Procedure) Rules,2004 elected and refused to file any defence to the action and/or join issues with the Respondent in pleading. Counsel opined relying on AGBABIAKA V. FIRST BANK OF NIGERIA PLC. (SUPRA) AT P6. 33 that the summary judgment procedure is designed to expedite justice of a case where there is no defence to the claim as in the instant case . Learned counsel submitted that by the parties’ answers to the Pre-Trial conference questions, out of Court settlement was not an option and parties in the same vein could not and did not agree to any form of settlement. He posited that while the Respondent by its answer to question 10 of the Pre-Trial information sheet urged the Court to resolve the issues

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in controversy (if any) without the necessity of going for a full trial in the spirit of Order 11 of the High Court Rules, the Appellant only sought for withdrawal of the suit from Court. Page 295 & 327 of the Record. Learned senior counsel urged us to find and to hold that the summary judgment procedure is a separate procedure targeted at speedy and judicious determination of a claim and that it does not envisage pre-Trial conference. He further urged us to dismiss the appeal as lacking in merit.

RESOLUTION:
First, it is important to clear the issue that the lower Court acted suo motu in ruling against pretrial conference. From the proceedings of 19/10/10 as fully set out above, the Court did not act suo motu. The parties had stated their views before the ruling of the Court. The Respondent had stated that they had filled out preconference application forms. He went on to pray that the two applications for summary judgment and preliminary objection be heard together while the Appellant prayed that the case be set down for pretrial conference. The Court then ruled that Order 11 does not permit of pretrial conference and opted to hear the

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application for summary judgment and the preliminary objection together. The Court certainly did not raise and rule on the issue suo motu.

It is necessary then to set out in full the relevant contentious provisions. Order 25 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004 provides:
“1 (1) Within 14 days after close of pleadings, the claimant shall apply for the issuance of a pre-trial conference Notice in Form 17.
(2) Upon application by a claimant under Sub-rule 1 above, the Judge shall cause to be issued to the parties and their Legal Practitioners (if any) a pre-trial conference notice as in Form 17 accompanied by a pre-trial information sheet as in Form 18 for the purposes set out hereunder:
(a) disposal of matters which must or can be dealt with on interlocutory application
(b) giving such directions as to the future course of the action as appear best adapted to secure its just, expeditious and economical disposal:
(c) Promoting amicable settlement of the case or adoption of alternative dispute resolution.”
Order 11 Rules 1- 5 of the High Court of Lagos State (Civil Procedure) Rules, 2004

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provides:
1. Where a claimant believes that there is no defence to his claim, he shall file with his originating process the statement of claim, the exhibits, the depositions of his witnesses and an application for summary judgment which application should be supported by an affidavit stating the grounds for his belief and a written brief in respect thereof.
2. A claimant shall deliver to the registrar as many copies of all the processes and documents referred to in Rule 1 of this Order as there are defendants.
3. Service of all the processes and documents referred to in Rule 1 of this order shall be effected in the manner provided under Order 7.
4. Where a party served with the processes and documents referred to in Rule 1 of this Order intends to defend the suit he shall, not later than the time prescribed for defence file:
(a) His statement of defence.
(b) Depositions of his witnesses,
(c) Exhibits to be used in his defence: and
(d) A written brief in reply to the application for summary judgment.
5(1) Where it appears to a judge that the defendant has a good defence and ought to be permitted to defend the claim he

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may be granted leave to defend.
(2) Where it appears to a judge that the Defendant has no good defence, the judge may thereupon enter judgment for a Claimant.
(3) Where it appears to a judge that the Defendant has a good defence to part of the claim but no defence to other parts of the claim, the judge may thereupon enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence.”
The above two provisions of the Lagos State High Court Rules of Procedure are clear and unambiguous. It is a cardinal rule of statutory interpretation that where statutory provisions are clear and unambiguous, the provisions must be given their clear and ordinary meaning. See BUHARI & ANOR V. YUSUF & ANOR (2003) LPELR-SC. 116/2003; ATTORNEY-GENERAL BENDEL STATE v. ATTORNEY-GENERAL OF THE FEDERATION (1981) Sc 1; OJUKWU v. OBASANJO (2004) 7 SC (PT.1).
Order 25 Rule 1 (1) of the High Court of Lagos State (Civil Procedure) Rules 2004 provides that within 14 days after close of pleadings, the claimant shall apply for the issuance of a pre-trial conference

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Notice in Form 17. The relevant question then is when are pleadings deemed to have closed? As submitted by learned counsel for the Respondent, Pleadings are deemed closed when the defendant had joined issues with the claimant in his statement of defence and if need be, the subsequent filing of Reply by the claimant to such statement of defence. Order 15 Rule 19 of the High Court of Lagos State (Civil Procedure) Rules ,2004 provides:
(1). Where a pleading subsequent to reply is not ordered, then, at the expiration of 7days from the service of the defence or reply (if a reply has been filed) pleadings shall be deemed crossed.
(2). Where a pleading subsequent to reply is ordered, and the party who has been ordered or given leave to file the same fails to do so within the period limited for that purpose, then, at the expiration of the period so limited the pleadings shall be deemed closed..”
While I concede that pretrial conferences are mandatory, it does not apply where pleadings have not yet closed or where by the wordings of other Rules of Court it is inapplicable. In the instant case, pleadings have not closed and the learned trial judge was

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correct when he ruled that Order 11 which provides for summary judgment did not envisage any pretrial conference. Under Order 11, 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, Exhibits to be used in his defence and a written brief in reply to the application for summary judgment. Where it appears to the judge that the defendant has a good defence and ought to be permitted to defend the claim he may be granted leave to defend. It is after this stage when the defendant has been granted leave to defend the suit that pleadings can now be completed and pretrial conference applied for in readiness for full Trial. Where however it appears to the judge that the Defendant has no good defence, the judge may thereupon enter judgment for a Claimant. Here, there is no room whatever for pretrial conference. These are the specific and clear provisions of Order 11. It is a specific and special procedure and different from ordinary summons procedure where pleadings are fully exchanged and calls for

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factual trial of the case. Pretrial conference is designed as an avenue for the parties to settle their issues and facts preparatory to the full trial of the case. It is clearly inapplicable as the summary judgment procedure is targeted at speedy disposal of the case where there is no defence or good defence to the claim. There are then no issues to settle. One wonders then why the Respondent herein rushed to apply for pretrial conference when the issue of whether or not there would be full trial was yet to be determined by the Court. Perhaps his attention was focused on not running out of time. My view is that as far as pre-trial conference is concerned in summary judgment applications, time does not begin to run until and only if the judge grants the defendant leave to defend the suit. So much precious time and effort has been expended on this unnecessary issue that it again underscores the need for counsel to read and be conversant with their rules of procedure.
My simple answer to issue 3 based on the discussions above is that the learned trial judge rightly dispensed with pretrial conference in the application for summary judgment under Order 11 and

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that it did not result in any miscarriage of justice. Claims under the summary judgment procedure do not envisage pre-conference unless and until the Court Rules that the defendant has a good defence to the claim. The provisions of Order 11 have no room for exploration of amicable settlement as under the pretrial conference. Once the Trial judge rules that the defendant has no good defence to the suit, that is the end of the matter. But all the issues under pre-trial conference will come into play if the judge grants leave to defend.

The issues formulated from the grounds of appeal here relate to whether or not the learned trial judge was right in ruling against pretrial conference. All the arguments especially by learned counsel for the Respondent as regards the propriety or otherwise of consolidating the hearing of the application for summary judgment with the preliminary objection are out of place in this appeal. The issue was dealt with in the substantive sister appeal, CA/L/1239/2010.
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In the final result, I hold that this interlocutory appeal lacks merit. It is hereby dismissed with costs assessed at N50,000.00 against the appellant.

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Other Citations: (2016)LCN/8742(CA)