University Of Benin V. Kraus Thompson Organization Ltd. & Anr. (2007)
LawGlobal-Hub Lead Judgment Report
CLARA BATA OGUNBIYI, J.C.A.
This is an appeal against the final judgment of the Lagos State High Court delivered on the 20th of January 2000 by way of summary judgment under Order 11 of the High Court of Lagos State (Civil Procedure) Rules per Honourable Justice Y. O. Yusuph of the Ikeja Judicial Division.
At the lower Court, the plaintiffs’ claims against the defendant as spelt out at paragraph 20 of their statement of claim were as follows:-
“20. WHEREOF, the plaintiffs claim;
i. The sum of $26,289.82 (twenty-six thousand, two hundred and eighty nine U.S. dollars, eighty-two cents) being the outstanding payment on supply of books journals and periodicals made to the Defendant on credit.
ii. The sum of $413.00 (four hundred and thirteen U.S. dollars) being the outstanding payment on Invoice No. 6309 valued at $5,513.00 (five Thousand, five hundred and thirteen U.S. dollars for which the sum of $5,100.00 (five thousand one hundred U,S. dollars) were alleged to have been paid by the Defendant.
iii. Interest at 55% per annum from 1982 till judgment and 10% from judgment till final liquidation.
iv. Any further sums of amount of money that the court may find the Defendant liable and payable to the plaintiff in the course of the trial or at the end of the case.
v. Further reliefs.
vi. Cost of this litigation.
In a 14 paragraphs statement of defence at pages 35 – 37 of the record of appeal, the defendant at paragraph 14 in sum total averred and said:-
“14. WHEREOF the Defendant states that the plaintiffs are not entitled to any of the reliefs set out and claimed in paragraphs 20 (i) – (vi) of the statement of claim.”
Having exchanged pleadings, the appellant as the defendant by a motion dated 20th of February, 1998 brought an application challenging the jurisdiction of the trial court to entertain the respondents/plaintiffs’ suit.
The respondents filed a counter affidavit against the appellant’s application. By its ruling delivered on and dated 7th July 1998 the court dismissed the appellant’s application at pages 71 – 79 of the record of appeal. Meanwhile on the 8th of July, 1998, the respondents filed a summons for judgment under order 11 of the High Court of Lagos State (Civil Procedure) Rules (1994) on the ground that the appellant had no good defence to the claim of the respondents. The summons for judgment together with the affidavit and exhibits are all evidenced at pages 79 – 92 of the record of appeal.
The appellant in response to the summons for judgment at pages 93 – 101 filed a counter affidavit and attached its statement of defence and exhibits. The appellant also filed a Notice of Preliminary objection to the respondents’ summons for judgment at pages 101 – 102 of the record of appeal. The said objection was, per the court’s ruling at pages 114 – 117 of the record, delivered on the 30th March, 1999 and accordingly dismissed.
On the 20th January, 2000, and at pages 144 – 154 of the record of appeal, the lower court delivered and gave judgment in favour of the plaintiffs/respondents as per their writ of summons and statement of claim. Against the judgment, the appellant has now appealed vide its notice of appeal dated and filed on the 6th March, 2000, wherein six grounds of appeal and their particulars were filed.
In accordance with the rules of this court, briefs of arguments were exchanged by parties; while that of the appellant was dated 6th December, 2002, it was however deemed filed and served on the 20th May, 2003. The respondents brief dated 20th April, 2004 was also filed pursuant to an order of this court made 25th January, 2005. On the 6th November, 2006, when the appeal was called up for hearing both learned Counsel Messrs Ogierhiaklu and Odubela for the appellant and respondents adopted their respective briefs. While the appellant’s counsel therefore urged us to allow the appeal, that of the respondents urged that the appeal be dismissed.
From the said six grounds of appeal, the appellant distilled two issues. While issue no. 1 was tied to grounds nos. 1, 3 and 4, issue no. 2 was tied to ground of appeal no. 2 and thus abandoning grounds 5 and 6 which same and the particulars are hereby struck out. The appellant’s two issues therefore are as follows:-
1. Did the learned trial judge err when he held that the defendant’s defence was a sham defence and that there was sufficient evidence to enter judgment for the plaintiff.
2. Did the learned trial judge err in his construction of Order 11 procedure.
The respondents in response to the appellant’s brief adopted the two issues as formulated by the appellant. I would not therefore reproduce same.
The appellant’s gamut in issue no. 1 is whether the learned trial judge erred when he held that the defendants’ defence was a sham? Learned appellant’s counsel argued the erroneous conclusion arrived at by the trial court in holding that the defendant was indebted to the plaintiffs. Counsel in support of his submission cited the provision of section 135 of the Evidence Act and the authorities in the cases of Elias vs. Omo-Bare (1982) 5 SC 25 at 47; Ogunleye vs. Oni (1990) 2 NWLR (Pt 135) 745; Nishizawa Ltd v. S.N. Jethwani (1984) 12 SC 234 where the apex court considered a situation where a defence was irregularly filed. A further related authority cited was an English decision in the case of Dummer vs. Brown (1953) 1 All E.R.
The said learned counsel while recapitulating on the pleadings of parties, submitted the defence of the appellant as specific and thus putting the plaintiffs to the strictest proof. That instead of the plaintiffs proving their case on the merit, they proceeded as if no defence had been filed. That the defendant had put up a proper and strong defence to the plaintiffs’ claim and it was therefore left for the plaintiffs to substantiate their claims. That the lower court was therefore wrong in holding the defence of the defendant as a sham. Counsel argued further that having regard to the affidavits evidence before the court, same were conflicting, and which the legal effect was to transfer the suit to the general cause list for its determination on the merit. Reference in support was made to the decision in the authority of V.S. Steel (Nig.) Ltd. vs. Govt State of Anambra (2001) 8 NWLR 454 also the case of Jos North L.G. vs. Daniyan (2000) 10 NWLR (Pt. 675) 281.
That the learned trial judge seemed to have misconstrued exhibit ’14’ by imputing admission of the sum of $26,280.00 to the defendant, when there was in effect no evidence of the defendant admitting the debt. That even the only sum of $413.00 admitted and owed by the defendant, was in favour of another company bearing the same name with the plaintiffs, – Kraus Reprint and Periodicals. Furthermore, that the invoice mentioned in exhibit ‘K2′ bears no relationship with the invoices referred to in the plaintiffs’ affidavit and statement of claim. With reference to the defendant’s affidavit, that same disclosed triable issues warranting the leanred trial judge to have transferred the case to the general cause list.
In response to the said issue the respondents’ counsel cited the provisions of Order 11 rules 1(a), 2, and 3 of the High Court of Lagos State (Civil Procedure) Rules 1994. That the respondents’ writ of summons as shown in the record of appeal was specially endorsed and accompanied by a statement of claim. That with service of same having been effected on the appellant, it amounted to the satisfaction of all the requirements stipulated under Order 11 of the High Court of Lagos State (Civil Procedure) Rules. That the trial court did consider the counter affidavit filed by the appellant as well as its statement of defence and following which it found that the so called defence was a sham. That a defendant whose affidavit does not disclose that he has a good defence to the action on the merit would fail to stop the plaintiff front entering summary judgment. That the appellant’s counter affidavit and the statement of defence did not disclose a good defence to the respondents’ claim. That the trial court was therefore right to have proceeded to enter judgment in favour of the respondents in terms of their writ of summons and statement of claim. Counsel to substantiate his arguments cited the authority of U.T.C. (Nig.) Ltd. vs. Pamotel (1989) 2 NWLR (Pt. 103) 244 a Supreme Court decision. That the appellant had no defence to the action of the respondents. Further authority cited in support was the case of Nishizawa Ltd v. Jethwani (1984) NSCC 87. Counsel urged us to therefore resolve the 1st issue in favour of the respondents.
For the convenience of the determination of this appeal, i would consider it appropriate to take the two issues together. This is apt in view of the fact that the two are greatly intertwined and dependant one upon the other. This i say in view of the second issue raised by the appellant relating to whether the learned trial judge erred in his construction of order 11 procedure?
The learned appellant’s counsel in substantiation of issue No.2 issue cited and re-iterated the authorities of the case of Nishizawa v. Jethwani supra; also Sodipo v. Lemmin Kainenoy (1986) 1 NWLR (Pt 15) 220 and submitted that with the defendant having filed a defence, the summons for judgment was therefore filed only thereafter as evidenced at pages 79 to 93 of the record of appeal. That the law requires the application to be filed after the defendant enters appearance. Counsel on the case of Nishizawa further submitted that, contrary to the findings of the lower court the defendants’ defence at hand is not a sham defence. This he argued especially where same was filed before the summons for summary judgment. That the court should have dismissed the summons and transferred the case to the general cause list. Learned counsel further cited the English case of Dummer v. Brown (1953) 1 All ER. 115 where the court of appeal in England held that the summary judgment procedure is meant for cases where no substantial dispute as to facts and law exist. A further related authority was the case of V.S. Steel vs. Government of Anambra State (2001) 8 NWLR (Pt. 454) at 465. That by the very nature of Exhibits “K5” and “K.6” same by their facts were made at the time the plaintiffs were anticipating going to court. That the court therefore erred in entertaining the application after the defence was filed. Furthermore that even on the merits of the application the verifying affidavit had fallen short of the requirements of the law in the application of order 11 of the High Court of Lagos (Civil Procedure) Rules. Counsel urged us to allow the appeal, therefore.
In response, the respondents’ counsel firmly and restated the lower court having fully understood and seized with the purport and construction of the said order 11 procedure. Counsel cited the case of N.B.N. Ltd v. Savol W.A. Ltd (1994) 3 NWLR (Pt.333) 435 at 452, and urged us to also resolve the said issue in their favour and hold the proper interpretation of order 11 by the lower court.
The determination of the said issues would first call for the reproduction of the learned trial judge’s judgment at page 153 of the record wherein he said:-
“Applying the above statements of the law to this application one finds that this is a straight forward case which is legally incontestable. The proposed defence is a sham. In Exhibit K4 in support of the plaintiffs’ summons for judgment, the defendant admitted contractual relationship with the 2nd respondent. Paragraph 1 of the plaintiffs’ statement of claim also supported this conclusion under order 11 procedure, once there is abundant evidence in favour of other party in this case the plaintiff, there is enough proof under the Evidence Act that Exhibit K4 emanated from the Defendant and is against the Defendants contention. On the issue of triable issue in the Defendant’s counter affidavit and statement of defence, i hold that they have failed to raise a real defence. A sham defence will not suffice.”
At pages 7 and 8 of the record, the plaintiffs comprehensive claims at paragraph 20 have been copiously reproduced earlier in this judgment.
Also at pages 79 – 92 of the said record the plaintiffs as the applicants and now the respondents in this appeal, filed their summons for judgment pursuant to order 11 Rules 1, 2 and 9 of the High Court of Lagos State (Civil Procedure) Law Cap. 61 (1994) and the inherent jurisdiction of the court seeking the following prayer:-
“AN ORDER for leave to enter final judgment in this action against the Defendant for the amount claimed and as upon the writ and statement of claim with interest and costs on the ground that the Defendant has no good defence to this suit.”
In support of the application is an affidavit of 22 paragraphs and to which a number of exhibits were attached. The defendant/appellant in answer to the affidavit also filed a 19 paragraphs counter affidavit.
Order 11 rule 1(a), 2 and 3 of the High Court of Lagos State (Civil Procedure) Rules 1994 under which the summons for judgment was brought provides as follows:-
“1. (a) Where the Defendant appears to a writ of summons specifically indorsed with or accompanied by statement of claim under order 4 rule 4, the plaintiff may on Affidavit made by himself or by any other person who can swear positively 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 the defendant shall satisfy him that he has a good defence to the action on the merits or shall disclose such 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 this 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.
(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 defence alleged goes to the whole or to part of only and (if so) to what part of the Plaintiff s claim.
(c) The judge may, if he thinks fit, order the Defendant, or in the case of a corporation, any officer thereof, to attend and be examined upon oath, or to produce any leases, deeds, books or documents, or copies of or extracts therefrom.”
With due reference to the said order 11 reproduced support, its very nature implies a procedure wherein a judgment could be given the plaintiff without taking the defence of the defendant. Its purport is to enable the plaintiff obtain a summary judgment which would otherwise have been prevented by the defendant’s unwarranted defence and thus causing an unnecessary delay in obtaining justice. The intention of the provision is not to impose an undue limitation on the discretion of a trial judge as to the materials and documents he will look at to satisfy himself that a defendant has disclosed such facts as may be deserved, sufficient to entitle him to defend. It is rather a rule of court made for the attainment of justice with ease, certainty and dispatch in an appropriate situation which would be understood as having been made in aid of the fundamental objective of the courts to do justice.
Historically, the summary judgment procedure was borrowed into our system from England. The main purpose of the procedure is to ensure justice to a plaintiff where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and ultimately frivolous litigation. The concept of justice being a tripartite traffic, involves both parties and the court. In other words, the necessity to ensure quick justice to a plaintiff, does not only incorporate the prevention of injustice to a defendant, but also the court which should not be subjected to an unnecessary exertion which otherwise could have been usefully exercised. The procedure serves a prevention of a protracted and ultimately frivolous litigation. In other words, the said rules are specially made to help the courts achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit, with utmost dispatch. This is very much welcome especially with the frequent outcry that justice delayed is justice denied. At this stage under the procedure, what the trial judge will be looking for are facts which will raise triable issue not proof of those facts.
It is the trial judge therefore who has the discretion, which must be exercised judicially and judiciously, whether to grant a defendant leave to defend either conditionally or unconditionally. The expectations of what the court is to take into account before granting the leave are stipulated in order 11, reproduced supra.
This is not to say that undue limitations have been placed on the discretion of the trial judge as to the materials or documents he will look at to satisfy himself that a defendant has disclosed such facts as may be deemed sufficient to entitle him to defend.
In the case of Nishizawa Ltd v. Jethwani cited supra, one of the issues for consideration was whether it was proper procedure for a defendant to file a statement of defence in resisting a plaintiff’s application for judgment under order 10 rule 1 of the High Court Rules of Lagos State. It is significant to mention that the said provision is synonymous to order 11 rule 1 now under consideration.
In that case, instead of the defendant showing cause against the application by his affidavit, the defendant’s solicitors filed a statement of defence, which did not seem to meet directly the facts deposed to in the affidavit in support of the motion. The counter-affidavit did not also meet the facts deposed in the said affidavit. One question that arose in that case was, with the statement of defence filed, as it was the case therein, before the consideration of the application for judgment under order 10, whether it sufficed and did fulfil the requirement of the rule that the defendant may “show cause.” At page 888, his Lordship Obaseki JSC in delivering the lead judgment had this to say:-
“With the guidelines given by order 10 rule 3 (a), (b) and (c) in mind, a statement of defence simpliciter is not a manner of showing cause against a statement of claim verified by affidavit. The only problem is whether the judge or court can shut his or its eyes against the statement of defence. The clear answer is that faced with the difficult task of deciding that the defendant has no defence to the action, he cannot shut his eyes against it. This must not be taken as elevating a statement of defence to the requirement of the rule. If a defendant wants to elevate the facts pleaded to that requirement, he must depose to them on oath in an affidavit. If the plaintiff in his statement of claim alleges that the defendant owes him a sum of money and the defendant denies it in his statement of defence, then if in the application for summary judgment the plaintiff deposed to an affidavit verifying the facts and proceeded to exhibit the agreement for the loan and the receipt given by the defendant as evidence of the loan, it is idle to think that a bare statement of defence denying the loan will amount to a good defence under order 10.”
The requirement of the rule, i reckon is, the need and presentation of materials on oath showing a good defence. It is apparent that a valid defence may not necessarily be a good defence; however the reverse is invariably true that a good defence is always a valid defence. It is trite law that:-
“The defendants’ affidavit must condescend upon particulars’ and should, as far as possible deal specifically with the plaintiff’s claim and affidavit, and state clearly and concisely what the defence is and what facts are relied on as supporting it. It should also state whether the defence goes to the whole or part of the claim, and in the latter case, it should specify the part. A mere general denial that the defendant is indebted will not suffice.”
This was per Blackburn in the case of Wellingford v. Mutual Society (1880) 5 Anp. Cas. at p. 704. The same principle of law was also enunciated in Re General Rail Whiteby’s case (1900) 1 Ch per Lindley, M.R. at p. 369 also Anon (1875) 249 per Quain 1. at p.250. Denial must therefore be specific or else it amounts to an admission. See also further relevant and related authorities of Olale v Ekwekudu 1989 4 NWLR (Pt.115) p,326 at 329 and 330; Savannagh Bank v Ben Atlantic (1989) 1 NWLR Pt.49 p.212 at 216 and Lewis and Peat (N.R.I) Ltd. v Akhimien (1976) 7 S C 157.
Consequently, the failure of the defendant to file an affidavit disclosing a good defence would automatically place his case in an intolerably weak position to satisfy the judge or court that it has a good defence. It is apparent that by filing a statement of defence may not be a conclusive way of showing cause under the said special provision and procedure. The fortification of this is where
Aniagolu JSC in his contribution in Nishizawa Ltd. v. Jethwani supra had this to say at page 896.
“A trial judge in determining whether to grant the defendant leave to defend in the face of a motion by the plaintiff, supported by his affidavit, for him to sign judgment against the defendant on the ground that there is no real defence to the action, must be guided by the over-all interests of justice, bearing in mind always that, while appreciating the need for procedural requirements to be obeyed, the ultimate dictates of justice must over-ride niggling technicalities.”
With the defendant/respondent having been served with a specially endorsed writ of summons accompanied by a statement of claim, it was expected of it to show that it had good defence to the plaintiffs’ claim by disclosing sufficient facts thus entitling it to defend the action. Such disclosure which must be on the counter affidavit in response to the affidavit in support of the summons for judgment.
As rightly submitted and argued by the learned appellant’s counsel, the onus is on him who asserts to prove and that civil cases are decided on the preponderance of evidence. It is as rightly stated by counsel also that the plaintiff has the burden to prove his case and not rely on the weakness of the case of the defence. The case of Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745 at 773 is in point. It is also trite that by the provision of section 137(2) of the Evidence Act, the burden of proving specific facts could shift depending on the circumstance of the case. The said provision of section 137 which relates to burden of proof in civil cases states as follows:-
“137 (1) ………………………..
(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.”
It follows graphically therefore, that with the plaintiffs/respondents summons for judgment supported by the affidavit, the onus had shifted onto the defendant/appellant, by its counter affidavit, to show cause why judgment ought not to have been entered in favour of the plaintiffs/respondents. In the spirit of section 137(2) of the Evidence Act, ‘reproduced supra, the affidavits of parties in the summons for judgment are equated to their pleadings thereof, with the case in contention contained therein the facts of the affidavits. The learned appellant’s counsel in citing the authority of the case of Nishizawa Ltd v. S. N. Jethwani under reference supra, stressed the court’s view in a situation where a defence was irregularly filed. In that case, as i earlier stated somewhere in this judgment, their Lordships of the apex court per Obaseki JSC had clearly pronounced that, with the hands, a statement of defence simpliciter was not a manner of showing cause against a statement of claim verified by affidavit. Rather, that in the consideration of the decision that the defendant had no defence to the action, a judge or court cannot shut his or its eyes against such defence. There was however a caveat to the extent that the status accorded the statement of defence should in no way be elevated to that of the requirement of the rule. In other words, for the facts pleaded on the defence to be on the same pedestal as that required by the rule, the said facts which were averred on the defence must also be deposed to on oath in an affidavit.
In my humble opinion, and given the birds eye view to the pronouncement by their Lordships, the concept of the interpretation and perception by the learned appellant’s counsel is very much incongruous and a complete misconception of the spirit of the case of Nishizawa upon which counsel sought to rely. In other words with the special nature of summons for judgment procedure, the determinant factor and consideration by a court, whether or not to enter a summary judgment, is dependant upon the facts disclosed on the counter affidavit of the defendant, on whom the burden of proof had shifted.
For the further determination of the issues, the reproduction of certain facts averred on the affidavits of parties would be necessary. For instance paragraphs 4, 5, 16, 18 & 19 of the respondents affidavit, in support of the summons of judgment at pages 81 and 83 of the record, had this to say amongst others:-
“4. That i have been informed by Mr. Ernie Pasbourge the lawful attorney of Plaintiffs and i verily believe that the Defendant is and was at the commencement of this action, truly indebted to the plaintiffs in the sun1of $26,289.82 and $413.00 respectively being;
i. the outstanding payment on supply of books, journals and periodicals made to the Defendant on credit;
ii. the outstanding payment on invoice No. 6309 valued at $5,513.00 for which sum of $5,100.;00 was alleged paid by the Defendant.
5. That i verily believe that the Defendant have no Good defence to this action……………………
16. That the defendant/respondent vide letter dated 6th July, 1990 another Ref. No. BUR/LS dated 2nd October, 1991 acknowledged its indebtedness to the plaintiff.
A copy each of the said letters are attached and marked Exhibits “k3” and “k4” respectively. …………….
18. That the plaintiffs/applicants pursuant to the instruction wrote a demand letter Ref. No. RT/225/L94 dated 30th May, 1994
A copy of the said letter is attached and marked Exhibit “Kj”.
19. That the defendant/respondent pursuant to the above letter admitted liability to the plaintiff/applicant vide its letter Ref. No. UL/l 08 dated 6th July, 1994.
A copy of the said letter is attached and marked Exhibit “k6”
The letter Exhibit “k3” referred to and stated in paragraph 16 of the affidavit in support of the summons for judgment emanated from the defendant/appellant and the contents of same reproduced states as follows:-
6th July, 1990
Dear Sir,
I refer to your letter ref. AEKO/Co-Q/UV3 V.C/590 of 28th May, 1990, copied to & me referring to some over-due debt to Kraus- Thompson Organisation. However, our records show that;
1. In August 1984 the company was paid $5,100.00. This was to cover the invoice no. 6309 valued at $5,513.00 and thus the company was short paid by $413.00.
2. The letter dated June 13, 1985 states:
“Since you have only paid us $5,100.00 you still owe us $413.00. Please remit this amount as soon as possible so that we may clear up your account.”
3. The letter dated November 18,1985, includes the statement of account stating our indebtedness at $413.00.
It is therefore clear that our indebtedness to Kraus-Thompson Organisation stands at $413.00.
Yours faithfully,
(SGD.)
O.O. Ogundipe
University Librarian”
Exhibit “k4” also vide paragraph 16 states:-
“2nd October, 1991
Dear Sir,
Re: Purchase of Books and Periodicals by the University of Benin Library Outstanding Debts: We wish to write you with regards to the outstanding debt owed to your company by the University of Benin.
The University of Benin Authority is in the process of examining the debt owed to your company in respect of the supply of books and periodicals to the University Library
We are requesting for copies of the following sales particulars to enable the University Authority to examine the outstanding debt owed to your company;
(1) Relevant sales invoices
(2) Relevant Delivery notes
(3) Relevant Indents or overseas orders issued by the University of Benin to your Company.
(4) Relevant Statements of Accounts.
We will appreciate your prompt response in forwarding the above-listed items.
Thank you.
Yours faithfully,
(SGD) …………..
H.O. BAZUAYE
AG. BURSAR.”
Exhibit “K.5” vide paragraph 18 of the affidavit in support was a demand letter by the plaintiffs/respondents and same stating as follows:-
“Dear Sir,
RE: OUTSTANDING DEBT OWED I(RAUS-THOMPSON ORGANISATION LIMITED FINAL DEMAND FOR PAYMENT.
We act for Kraus-Thompson Organisation Limited and their resident Agent – Mr. Ernie Passborg of Excalibur Trading Co., Inc. on whose instructions and behalf we issue the final demand for payment of periodicals supplied the University which has been overdue for payment……………
The Principal outstanding due to our client on the invoices is $26,280.82 (twenty-six thousand, two hundred and eighty dollars, eighty-two cents). ……………
Yours truly
(SGD) ”
Ricky Tarfa Esq.
Counsel)
Exhibit “k6″ in paragraph 19 of the affidavit in support also states as follows:-
6th July, 1994
Re: Outstanding Debt owed Kraus-Thompson Organisa-tion Limited: Final Demand for Payment.
I wish to state with due sense of responsibility that the claim being made by Kraus Thompson Organisation Limited has not been identified by us or linked with any of our transactions in the University of Benin Library .
We earlier received a letter dated 20th August, 1990 fro a legal firm headed by A. E. Ekukinah Esq., based in Lagos demanding the sum of $26,280.82 on behalf of Kraus-Thompson Organisation Limited. After careful and thorough search through our records we responded explaining that there was no trace of such debt in our records. We found, however, some records of our transactions with Kraus-Thompson Organisation Limited. The latest of such records is a letter dated June 13, 1985 from Kraus-Thompson Organisation Limited clearly stating that the outstanding debt owed them was $413.00.
While we do not dispute our indebtedness to the tune of $413.00, we have not been able to establish the authenticity and basis for their claim of a debt of $26,280.82.
Thank you.
(SGD.) .
S. A. Yamah
University Librarian”
The defendant/appellant on its counter affidavit at pages 94, 95 and 96 of the record in response had the following also to say at paragraphs 4, 5, 9, 13, 14 and 15.
“4. That I am informed by Paul, Okonofua, Esq., of counsel and i verily believe him that paragraphs 4, 5, 9, 12, 13, 14, 15, 16, 17, 18, 19 of the Affidavit in support of the plaintiffs’ motion are grossly untrue but rather the Defendant has a water right defence to the plaintiffs action.
5. That further to paragraphs 4 & 5 of the plaintiffs affidavit, which are denied, the Defendant states that it is not indebted to the plaintiffs in the sum of $26,289.82 and $413.00 respectively or any amount at all……..
9. That with respect of Invoice No. 6309, the Defendant states that her officials wrongly indicated in their letter of 6/7/96 and other letters that the sum of $413.00 (Four hundred and thirteen Dollars) was outstanding in their record in favour of the 1st plaintiff whereas the amount was outstanding in favour of one K.raus reprint periodicals, a different Organisation altogether. ………
13. That the Defendant in its letter to the plaintiffs solicitors dated 6th July, 1998 erroneously admitted liability to the plaintiff claim to the tune of $413.00 thinking that the 1st plaintiff was the same organisation as Kraus Reprint and periodicals to which the Defendant discovered it was owing the outstanding figure ……..
15. That the Defendant/Respondent is seriously disputing the alleged debt and it has filed a water tight statement of Defence to that effect.”
Having regard to order 11 of the High Court of Lagos State (Civil Procedure) Rules, it is as rightly submitted by the learned respondents’ counsel, that the defendant in consequence of the order was expected to show that it had a good defence to the plaintiffs’ claim. This would obviously require the disclosure of sufficient facts which would have entitled it to defend the action. The appellant copiously and strenuously sought to rely amongst others on paragraph 6 of its counter affidavit at page 94 of the record, wherein it denied any contractual relationship with the plaintiffs/respondents. With the greatest respect to the learned appellant’s counsel, its contention requiring the respondents to produce such evidence was grossly misconceived.
This i say especially in the light of section 137(2) of the Evidence Act reproduced supra wherein the affidavit evidence of the respondents coupled with the exhibits so attached had shifted the burden of proof unto the defendant/appellant. In otherwords, by the respondents deposition at paragraph 5 of their affidavit in support of the summons there was no defence to the plaintiffs/respondents claim, it is incumbent on the defendant/appellant by its counter affidavit to have satisfied the lower court that it had defence to the suit. The discharge of such a burden was dependant upon the facts deposed to on the appellant’s counter affidavit. The facts which ought to be specific and addressing relevant defence.
On the guiding principle on a summary judgment procedure in the case of Macaulay v. NAL Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283 at 322 their Lordships of the apex court per Karibi-Whyte JSC succinctly restated the conditional requirements expected of the defendant to satisfy before he would be allowed to defend the action; In other words he must be able to:-
” ….. satisfy the judge by his statement of defence or affidavit that
(1) he has a good defence on the merits of the case or
(2) he can disclose such facts as may be deemed sufficient to entitle him to defend the action generally,
(3) the claim does not come within the purview of order 3 rule 4.”
In the said same authority Agbaje JSC at page 310 also had this to say of the defendant having to show cause against an application for summary judgment:
“The defendant my show cause against the plaintiffs’ application.
(1) by a preliminary or technical objection, e.g. that the case is not within this order or that the statement of claim or affidavit in support is defective .
(2) on the merit, e.g. that he has a good defence to the claim on the merits, or that a difficult point of law is involved, or a dispute as to the facts which ought to be tried, or a real dispute as to the amount due which requires the taking of an account to determine, or any other circumtances showing reasonable grounds of a bona fide defence.”
On the authority of Macaulay supra, it was expected of the appellant as the defendant at the lower court to have established or shown either through its statement of defence or counter claim, if any, that it was entitled to a defence on the merit. The defence which ought to have been an embodiment of the counter affidavit in response to the affidavit in support of the summons for the summary judgment.
I have closely examined and considered the counter affidavit of the defendant/appellant especially at paragraphs 4, 5, 7, 9, 13 and 15 reproduced supra; the cumulative perusal of same amounted to a general denial of the depositions on the respondent’s assertions. An outright assertion especially at paragraph 5 is paramount as it relates to the sums of $26,289.82 and $413.00 or of any amount whatsoever of “supplies of books, journals and or periodicals either on credit or otherwise” which were also generally denied. Further still while paragraphs 7 & 9 alleged an available strong defence, paragraph 13 alleged an erroneous admission of liability to the claim of $413.00. It is of interest to note that the documents exhibits “K.3” and “K.4” reproduced earlier in this judgment emanated from the defendant/appellant. With specific reference to exhibit “1(4,” a part of the write up said:-
“The University of Benin Authority is in the process of examining the debt owed to your company in respect of the supply of books and periodicals to the University library.”
This is very much in contradiction to the out right denial by the appellant especially at its paragraph 6 wherein it categorically denied any supply of books, journals and or periodicals either on credit or otherwise.
Per Exhibit “16” further, the last paragraph, while unreservedly admitting the indebtedness of the appellant to the tune of $413.00, it however had not been able to establish the authenticity and basis for the claim of the sum of $26,280.82. The said sum of $26,289.82 was at paragraph 5 generally denied by the appellant with no further expatiation.
It is also of note on the question of the $26,289.82 to state further that the claims of same as well as the $413.00 were both specifically made out at paragraph 4 of the affidavit in support. Exhibit “K2” was clearly in point to the effect that the plaintiffs did send to the defendant, for the second time, the docul11ents evidencing and demanding the indebtedness to the plaintiffs in the sum of $26,280.82 cents. Paragraph 15 of the affidavit in support was clear cut on the demand letters which were both evidenced per exhibits “K.1” and “K2”. The defendant/appellant did not see it necessary to deny paragraph 15 in the counter affidavit. It follows therefore that exhibit “12” stands admitted. The general denial at paragraph 4 did not suffice. It is trite that such denials amount to an admission in the absence of specific and definite explanation, sufficient enough and as required by law under a summary judgment application, which is of a special procedure. By exhibit “K3” the defendant clearly admitted an outstanding sum of $413.00 U.S. dollars.
It is also trite law that “where a plaintiff alleges a sum owed to him by the defendant, who denies same in his statement of defence, if in the application for a summary judgment the plaintiff deposes to an affidavit verifying the facts and exhibits, all relevant documents in support of the loan, a bare statement of defence denying the loan will not amount to a good defence under order 10. This again was the pronouncement per their Lordships of the apex court in Nishizawa Ltd. v. Jethwani supra. In support also is section 137(2) of the Evidence Act cited supra and extensively elaborated upon wherein the burden of proof shifts until all issues are dealt with.
Deducing from the provisions of the law, it is obvious that a mere filing of an affidavit perse is not ipso facto a letting in reason to defend. The trial judge would still have to determine whether or not such an affidavit discloses a defence on the merit. If it does, then leave to defend will logically be granted; if it however does not, the plaintiff will then be allowed to sign final judgment. See again the case of Nishizawa Ltd. v. Jethwani supra per Oputa JSC.
Again in the case of Macaulay v. NAL Merchant Bank Cited supra, the burden is on the defendant who must show in a summary judgment before he is allowed to defend. In the said case further, their Lordships per Nnamani JSC on the burden on defendant in an action for repayment of loan held amongst others that once the defendant admits the receipt of the loan, the burden of proof as to repayment or as to the reasons for non repayment is on him.
In a further authority of F.M.G. v. Sani (1990) 4 NWLR Pt. 147, P. 688, it was further held by their Lordship of the apex court that a prima facie defence only is required and not defence on the merit at this stage. In other words triable issues of questions and which ought be shown by swearing to a counter affidavit, and by being examined on oath if the judge deems it fit. It follows therefore that once the defendant construes that he has a good case on the merit and shows sufficient facts or that there are triable issues or any other reasons why there must be a trial, he ought be entitled to unconditional leave to defend. See also the case of Adebisi Mcgregor Association Ltd. v. N.M.B. Ltd. 1996 2 NWLR (Pt. 431) 278.
The purpose of summary judgment procedure under order 11 as stated earlier in this judgment is to prevent sham defence from defeating the right of parties by delay and thus causing great loss to the plaintiff. With due reference to the affidavit evidence by both parties reproduced supra and more particularly the exhibits attached, it is not a matter of controversy that the defendant admitted contractual relationship with Kraus Thompson Periodicals the 2nd plaintiff. Exhibits “14” and “16” both emanated from the defendant/appellant, who cannot now deny either their existence or origin.
Again in the case of N.B.N. Ltd v. Savol W.A.. Ltd. (1994) 3 NWLR (Pt. 333) 435 this court on the purpose of summary judgment procedure where the defendant apparently has no defence said at page 452 amongst others that:-
” . . . . The defendant ought not to be allowed to stop him (the plaintiff) in those circumstances from obtaining judgment the way he seeks unless he shows by affidavit evidence that he has a real defence, not a sham defence to the action.”
As rightly submitted by the learned respondents’ counsel, and contrary to the contention of the appellant in my view, it is not in question that the trial court perfectly understood the proper construction of order 11 procedure and which he appropriately applied same. In support thereof is again the case of N.B.N. Ltd. vs. Savol W.A. Ltd supra wherein it was held at page 453 that:-
“A mere sweeping statement or general denial by a defendant defending a claim under order 10 procedure is clearly insufficient. The affidavit showing cause must contain particulars upon which the substance of the facts deposed to or of the defence can be viewed. Sufficient facts and particulars must be given to show that there is a bonafide defence. The affidavit of the defendant does not need less particularization than luay be required in pleadings. This is obvious in defences denying indebtedness or of fraud or illegality.”
Underlining is for emphasis, whereby great weight of reliance is laid on the defendant’s affidavit which is of no less significance to the pleadings or the statement of defence. This clearly is in consonance and support of the restatement by their Lordships again in the case of Nishizawa Ltd. v. Jethwani supra wherein a defendant’s counter affidavit was not accorded less status than the statement of defence.
Furthermore, Karibi-Whyte JSC in the case of U.T.C (Nig.) Ltd v. Pamotei (supra) also had this to say at page 283:-
“The rationale of the order 10 procedure is for straight forward cases which are legally incontestable and to enable speedy trial of claims which in law ought not be contested because the legal situation is too clear to allow a defence. It is also designed to discourage unmeritorious claims, or spurious defence.”
Nnaenleka-Agu JSC at page 303 – 304 of the same report also held and said:-
As I see it, order 10 produce is both a necessary weapon for obtaining quick judgment where the defendant either has no defence to the action of the type contemplated by the rule or does not, for any reason, want a contest.”
On the question of exhibits “K5” and “K6” and the nature thereof, the documents which were “demand” letters as rightly argued by the learned respondents’ counsel had nothing unusual or warranting any special consideration or construction as wrongly conceived by the learned appellants’ counsel.
The issue at hand in my humble view and from all deductions therefore does not raise any conflict on the affidavit of parties contrary to the submission by the learned appellant’s counsel. The reliance by counsel therefore on the case of v. S. Steel (Nig.) Ltd vs. Government of Anambra State supra and Jos North L.G. vs. Daniyan (2000) 10 NWLR (Pt. 675) 281 are with all due respect a misconception, as they do not aide its case. The affidavit evidence reveals the respondents having supplied books and periodicals to the appellant and consequent to the outstanding balance of payments arising therefrom. Enough facts also avail the appellant having acknowledged receipt of the items supplied, but had failed to pay.
Relying again on the authority of the apex court in the case of Nishizawa Ltd v. Jethwani supra, their Lordships, as rightly submitted by the learned respondents’ counsel, affirmed the decision where a statement of defence was a sham defence as it offered no material upon which a court could grant leave to defend. The same is the situation of the case at hand.
The appellant’s counter affidavit and the statement of defence did not disclose sufficient facts to entitle it to defend the action. The court also correctly interpreted and followed judicial decisions and authorities of the higher courts in the construction of order 11 procedures as it did. Consequently, it was therefore right that the court proceeded to enter judgment in favour of the respondents in terms of their writ of summons and the statement of claim.
Again in the authority of the case of U.T.C. (Nig.) Ltd. v. Pamotei supra the apex court at p. 282 found and said as follows:-
“A defendant whose affidavit or oral examination by the judge does not disclose that he has a good defence to the action on the merits or disclose sufficient facts to entitle him to defend the action generally will fail to stop the plaintiff from entering summary judgment.”
On the totality of the appeal at hand, the same lacks merit as the two issues are both resolved against the appellant. The same and the grounds of appeal upon which they are predicated all fail and are dismissed.
The appeal in consequence is therefore dismissed while the judgment of the Lagos State High Court per Justice Y. O. Yusuph of the Ikeja Judicial Division delivered on the 20th January, 2000 is hereby affirmed.
There shall also be costs of M10,000.00 to the respondents.
Other Citations: (2007)LCN/2179(CA)
