⦿ CASE SUMMARY OF:
Kha-lad Nigeria Limited & Anor v. Unity Bank Plc (2017) – CA
1. KHA-LAD NIGERIA LTD;
2. MRS. LADI B. MSHELIA
1. UNITY BANK PLC
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Obietonbara O. Daniel-kalio, J.C.A.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Y. A Yusuf, Esq.
* FOR THE RESPONDENT
– O.I. Habeeb, Esq.
⦿ FACT (as relating to the issues)
This appeal is over the summary judgment of the Kaduna State High Court (the lower Court). Before that Court, the Respondent Unity Bank Plc as the plaintiff, by a writ of summons for summary judgment, claimed against the Appellant as the defendant, the sum of N41,314,247.94 being the aggregate of the outstanding debt balance in the current and loan accounts of the 1st Appellant Kha-Lad Nigeria Ltd, with Respondent. The Respondent had granted a loan facility to the 1st Appellant which facility was guaranteed by the 2nd Appellant Mrs Ladi B. Mshelia. The Respondent in addition to the aggregate amount also claimed interest at two rates until the final liquidation of the Judgment debt. In its statement of claim at the lower Court, the Respondent gave copious details of the transaction between it and the Appellants.
On 28/10/13, the Respondent filed a motion on notice praying the lower Court to enter Summary Judgment in its favour in the sum of N14,314,249.94. The Appellant in support of the motion attached several exhibits on the transaction.
After hearing the motion, the learned trial judge in a Ruling delivered on 25/11/13 gave Judgment to the Respondent. Dissatisfied, the Appellants on 5/2/14, filed a Notice of Appeal.
1. Whether having regards to the law, evidence and facts relevant to the suit of the Respondent, the lower Court ought to have made an Order transferring same to the general cause list.
2. Whether a claim involving the payment of interest qualifies as a liquidated claim or sum.
⦿ ARGUMENTS OF PARTIES
* FOR THE APPELLANT
1. i. A default of defence by a party under Order 11 Rule 4 of the Kaduna State High Court (Civil Procedure) Rules, 2007 it was submitted, does not diminish a right to fair hearing. It was submitted that judicial responsibility required the lower Court to see if there were inherent facts in the affidavit in support of the motion for Summary Judgment and the exhibits attached to the motion that could constitute a defence to the Appellants. It was submitted that had the lower Court perused the affidavit and the exhibit attached to the motion for Summary Judgment, it would have given the Appellants the benefit of hearing the matter under the general cause list.
ii. It was submitted that the fact that the Appellants did not file a defence is not an excuse in law to award the Respondent its claims.
2. It was contended that as a general rule, a claim of interest on a principal sum cannot qualify as a liquidated claim under the summary Judgment procedure. It was contended that upon making a specific finding that the claims of the Respondent were inclusive of interest, the lower Court ought to have heard the matter under the general cause list.
*FOR THE RESPONDENT
1. It was contended that the Appellants having admitted liability to pay the sum stated in Exhibit N in their letter, Exhibit 0, there was no further proof required by the Respondent.
2. The Respondent’s learned Counsel submitted that since the claim before the lower Court was for a liquidated money demand admitted by the Appellants in their letter, Exhibit 0, the matter was one suitable to be heard under the Summary Judgment procedure. It was further submitted that the Appellants having admitted liability to the Respondent vide their Exhibit 0, the lower Court was right to have entered Judgment against the Appellants.
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED WITH N50,000 COST]
The Court of Appeal held in favour of the Respondent but against the Appellant.
The Court of Appeal stated: “Under Order 11 Rule (1) of the Kaduna State High Court (Civil Procedure) Rules 2007, where a plaintiff believes that there is no defence to the claim, he shall file with the originating process a statement of claim, Exhibits, depositions of witnesses and an application for summary judgment which shall be supported by an affidavit stating the grounds for the plaintiffs’ beliefs, and also a written address. Once a plaintiff has 10 discharged these obligations, a serious defendant is required to take the steps prescribed under Order 11 Rule 4 of the said Rules, within the time allowed. The steps are that he shall file a statement of defence, deposition of witnesses, the Exhibits to be used in his defence, and a written address in reply to the application for summary judgment. The role of the judge in all of this, is prescribed under Order 11 Rule 5 (1) of the said Civil Procedure Rules and it states that the judge will permit the defendant to defend the claim where it appears to him that a Respondent has a good defence. Under Order 11 Rule 5 (2), where the defendant fails or neglects to comply with Order 11 Rule 4, the judge may enter judgment for the plaintiff.”
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
Where there is no defence to a summary judgment procedure, the Court can enter judgment summarily for the plaintiff because the averments in the statement of claim are taken to be admitted by the defendant. – Daniel-kalio, J.C.A. Kha-Lad v. Unity Bank (2017)