➥ CASE SUMMARY OF:
Olasunkanmi Greg Agbabiaka (Substituted for Alhaji S. O. Agbabiaka (deceased) by order of court dated February 25th, 2003) V. First Bank of Nig. Plc (CA/L/49/2001 • 16 May 2006)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Fair hearing;
Summary judgement.
➥ CASE FACT/HISTORY
The respondent in this appeal who was the plaintiff in the High Court of Lagos State, claimed in that court as per its writ of summons and amended statement of claim:- An order for the specific performance of the agreement between the plaintiff and the defendant (i.e.) that the defendant should forthwith deliver the certificate of occupancy in respect of the property at No. 22, Akinbaiye street, Isolo, Lagos to the plaintiff. The total debt of the sum of N844,207.06k as at the 17th June, 1992. 15% interest on the total sum owed from 29 January, 1985 until judgment and 10% thereafter until the entire judgment debt is obtained.
The respondent also filed an application in the lower court for summary judgment under Orders 10 and 11, rules 1 and 2 of the High Court of Lagos State (Civil Procedure) Rules of 1972 and under the inherent jurisdiction of the honourable court with a 14 paragraphed affidavit and 9 exhibits A1 – A8 and exhibit B.
The appellant herein, who was the defendant in lower court, filed a 14 paragraphed affidavit showing cause. He attached no exhibit to his affidavit.
In his ruling of July 18, 1997, containing the final judgment, the learned trial Judge, Kekere-Ekun J of the High Court of Lagos State as she then was stated inter alia ; ‘In the circumstance, judgment is hereby entered in favour of the plaintiff against the defendant in the sum of N844,207.00k being the cumulative principal and interest due to the plaintiff as at 17th June, 1992 as a result of banking facilities (term loan and overdraft) granted at the request and instance of the defendant or the sum of N180,000.00k of the cumulative sum.
The appellant dissatisfied with the judgment of the trial court filed the notice of appeal dated the 25th day of August, 1997, wherein four grounds of appeal were set out.
➥ ISSUE(S)
I. Whether the appellant was not denied fair hearing by the learned trial Judge who decided to hear the motion for summary judgment against the appellant in the absence of the appellant and his counsel on a day fixed by the court clerk or registrar for mention and not for the hearing of the said motion?
II. Whether from the facts of this case the plaintiff/respondent had satisfied the conditions for the grant of a summary judgment entitling it to be awarded the entire amount claimed plus interest in the absence of materials showing how the amount was arrived at?
III. Whether the learned trial Judge misapplied the principles in Macaulay v. Nal Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) at 283 to the present case when he held that the appellant disclosed no defence to the action of the respondent in its affidavit showing cause?
IV. Whether the learned trial Judge erred, when he entered judgment in favour of the respondent in view of section 132 of the Evidence Act?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE APPELLANT WAS GIVEN AMPLE TIME FOR DEFENCE; HE NEVER SHOWED UP IN COURT
‘The plaintiff in the trial court who is the respondent herein filed its application for summary judgment on the 8th day of March, 1996 together with its affidavit in support. The respondent attached 9 exhibits to its affidavit, all of which were pleaded in paragraphs 11 and 12 of the said affidavit. See page 33 of the records of appeal. Paragraphs 11 and 12 of the affidavit in support is hereunder reproduced; ‘11. that the defendant’s application for loan Ref: SAH/E/1/85 dated 7th January, 1985, the plaintiff’s reply thereto dated 29th January, 1985, the defendant’s further reply, reference SAH/F/2/85 of 29th January, 1985, the defendant’s solicitor’s letters of 2nd February and 8th March, 1985 respectively, addressed to the plaintiff’s manager and the plaintiff’s form No. 917, in which the defendant undertook to effect a legal mortgage to the plaintiff are hereby annexed as exhibits A1 – A8. 12. That the defendant last serviced his account No. 01042374 on 8th February, 1988, as shown in form No. 3483 herewith annexed as exhibit B.’ The respondent’s counsel duly served the appellant on the 20th of March, 1996 and filed an affidavit of service in respect of the motion for summary judgment. The appellant filed an affidavit showing cause on the 3rd of May, 1996 the same day that the case was listed in the trial court, the case was adjourned to the 9th of July, 1996 for argument. On the 9th of July, 1996, the case had already been transferred from the court of Martins J to the court of Kekere-Ekun J as she then was, who eventually delivered the judgment now appealed against. The case was therefore adjourned to the 13th day of January, 1997 for mention. On the 13th of January, 1997, before the lower court, his lordshipadjourned the respondent’s motion for summary judgment of 8th March, 1996 for argument to the 5th of March, 1997, at the instance of the appellant, three days less one year when it was filed. On the 5th of March, 1997, the appellant’s counsel who suggested the hearing date at the last adjourned date was absent in court but, wrote to the court for an adjournment. The respondent’s counsel stated that he was not copied with the letter for adjournment and that it was the appellant who suggested the hearing date. Learned counsel argued that the affidavit showing cause filed by the appellant lacked substance, he urged the court to allow the respondent move his application. The learned trial Judge in his ruling refused the application of the respondent to move his motion and gave the appellant a last opportunity to defend same. He however added in his ruling that if the situation remained the same, learned counsel for the respondent shall proceed to move his motion. In his letter for an adjournment, learned counsel for the appellant suggested the 16th of April, 1997 for the argument of the pending application, the application was adjourned to same date suggested. On the 16th of April, 1997, the respondent’s counsel was absent, but wrote a letter informing the court of his indisposition. The case was further adjourned to the 14th of May, 1997 for argument. On the 14th of May, 1997 the learned trial Judge was on a course and so the court did not sit, the case was therefore adjourned mutually by both counsel to the 7th of July, 1997, (after call over). See page 51 of the record of appeal. Learned counsel for the appellant was absent on July 7th, 1997 A without explanation despite that the date was mutually fixed by both counsel on the last adjourned date. The learned trial Judge stood down the matter till 12:10pm, when the appellant’s counsel was still absent without explanation, the learned trial Judge gave leave to the respondent to move his application of 8th March, 1996 and thereafter reserved ruling till the 18th of July, 1997.’
FAIR HEARING WAS NOT DENIED THE APPELLANT
‘On the issue of fair hearing canvassed by the appellant in pages 2 and 3 of the brief of argument, I perused the argument of the appellant and found out, that it is not the contention of the appellant that he had no notice of the adjourned date, learned counsel did not contend the averment of the respondent that both counsel mutually fixed the date when judgment was eventually reserved rather, he argued that because Mondays were usually call over days and the courts were usually very busy and that he was otherwise engaged in another court and so failed to appear or the least write the honourable court. He contended that the case was adjourned by the registrar of court for mention and not for argument, I find no proof of this in the record of appeal. The learned counsel for the appellant found it convenient, not to appear in court without explanation, but he expected that the court must wait for him indefinitely. The application for summary judgment had been filed more than a year before it was eventually heard, the delay in moving the said application was not unconnected to the truancy of the counsel. In his brief, learned counsel for the appellant stated that he was within the court premises but that he was busy in another court. This argument of learned counsel is not impressive, the date fixed for the hearing of the case now on appeal was not imposed on him, and the case was further stood down until 12:10pm before it was eventually heard, if learned counsel was serious he would either have shown up by then, sent another counsel or written a letter to the trial court. In my view, the learned trial Judge was fair to both parties, unless the appellant was going to spin a surprise on the respondent, its affidavit showing cause was before the trial court and it was duly considered in the judgment of the trial court, I do not think that the purport of fair hearing is to allow an unserious counsel to perpetually frustrate justice by holdingthe court to ransom, rather, I believe the purport of fair hearing is the interest of justice and justice delayed is justice denied. I refer to A the Supreme Court’s decision on the issue of fair hearing in the case of Magit v. University of Agriculture Markurdi (2005) 19 NWLR (Pt. 959) 243 – 244 paragraphs- A, (2006) All FWLR (Pt. 298) 1313: “Fair hearing is not a cut and dried principle which parties can, in the abstract always apply to their comfort and convenience. It is a principle which is based on the facts before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.” The appellant in the lower court had hitherto employed every delay tactics, from filing processes on the dates fixed for court sitting to being absent from court on days suggested by himself. The motion for summary judgment suffered seven adjournments, many of which were at the instance of the appellant. The appellant deliberately absented himself from court on a date he had notice of that the matter was comingup, with the only excuse that the court only should have mentioned the case and not heard the pending motion. This is a deliberate attempt by the appellant to further frustrate the case of the respondent and delay the justice of the case. It is further instructive that the decision of the Supreme Court in Ndukauba v. Kolomo (2005) All FWLR (Pt. 248) 1602, (2005) 124 LRCN 479 at 492, Oguntade JSC emphasized on the enshrined provisions of section 36 of the 1999 Constitution as regards fair hearing when he said:- “In a civil case the principle of fair hearing in relation to a plaintiff translates into these; A plaintiff or any party is entitled to counsel of his choice. A plaintiff must be afforded the opportunity to call all necessary witnesses in support of his case. A plaintiff by himself or counsel must have the opportunity to cross-examine or otherwise challengethe evidence of witnesses called by his adversary. At the close of the case and in accordance with the relevant rules, a plaintiff must have the same right as given to his adversary to offer by his final address on law in support of his case.” See Att.-Gen., Anambra State v. Nwobodo (1992) 7 NWLR (Pt. 256) 711; Consortium MC v. NEPA (1992) 6 NWLR (Pt. 246) 132; Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt. 147) 266; 7UP Bottling Co. Ltd v. Abiola and Sons (Nig.) Ltd (1995) 3 NWLR (Pt. 383) 257 SC ; Ebele v. Ikweki (No. 2) (1995) 7 NWLR (Pt. 405) 91. I therefore hold that the appellant was not denied fair hearing by the learned trial Judge when he heard the respondent in default of the appellant’s appearance on a day mutually fixed by both counsel after standing the case down for several hours. Issue No. 1 is hereby resolved against the appellant herein.’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[THE RESPONDENT CLAIMED PRE-JUDGEMENT INTEREST
‘The law is settled on the prerequisite for the award of pre-judgment interest. The interest must have been claimed in the writ and statement of claim, and evidence must have been led in support of the claim. The cases of Henkel Chem. Ltd v. A. G. Ferrero and . Co. (2003) 4 NWLR (Pt. 810) at 306, (2004) FWLR (Pt. 188) 1078 and F. B. N. Plc v. Excel Plast. Ind. Ltd (2003) FWLR (Pt. 160) 1624, (2003) 13 NWLR (Pt. 837) at 412 are succinct on the subject of pre-judgment interest.’
‘The respondent in the lower court claimed pre-judgment interest on the principal loan it granted the appellant and led evidence as per form 917 attached to its affidavit in support, which also shows that there was an express agreement between the parties to pay interest. This evidence is unchallenged by the appellant. A The respondent is entitled to the pre-judgment interest claimed in my view, and I so hold; the 2nd issue of the present appeal is therefore resolved against the appellant.’]
.
.
↪️ ISSUE 3: IN RESPONDENT’S FAVOUR.
[THE APPELLANT DID NOT SHOW CAUSE IN HIS AFFIDAVIT
‘In the interest of justice, I will restate the principles of Macaulay v. Nal Merchant Bank Ltd (supra) , on the requirements of affidavit showing cause which the learned trial Judge relied upon in his ruling at pages 93 and 94 of the record of appeal; “(a) condescend upon particulars and 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. state whether the defence goes to the whole or part of the claim, and in the latter case specify the part; when the defence is that the defendant is not indebted to the plaintiff, state the grounds on which the defendant relied as showing that he is not indebted. A mere general denial that the defendant is not indebted will not suffice. where the affidavit states that the defendant is not indebted to the plaintiff in the amount claimed or any part thereof, state why the defendant is not so indebted and to state the real nature of the defence relied on; A (e) … (f) … (g) in all cases, give sufficient facts and particulars to show that there is a bona fide defence.’
‘The appellant in his affidavit showing cause admitted that he applied for and was granted an overdraft of N180,000.00k as claimed by the respondent. The contention of the appellant in his affidavit was that he believed that the said loan was interest free. The respondent has claimed for interest on the loan and led evidence as per form 917 attached to its affidavit in support of the motion for summary judgment in proof of its claim for interest. The appellant did not challenge this evidence but made a general denial that it was unaware of any interest chargeable on the said loan, it therefore failed the test in Macaulay’s case. The appellant in his amended brief of argument stated that the learned trial Judge ought to have deducted the amount shown by the respondent in its exhibit to have been paid by the appellant from the judgment sum. The appellant did not attach any exhibit to it’s affidavit showing cause but, relied on exhibit two of the respondent. The facts and exhibits before the trial court discloses that the appellant opened a savings account with its creditor (the respondent) and saved some money therein in accordance with the terms of the facility granted him. The appellant’s affidavit is silent on this issue, whether the respondent had exercised a lien on the said savings, neither did it prove that the amount claimed was not exclusive of the said savings. The appellant also did not give sufficient fact/particulars to support his case as recommended in Macaulay’s case, he failed to attach any exhibit to its affidavit. Appellant made a sweeping general denial of the averments in the affidavit of the respondent. I agree with the learned trial Judge that the affidavit showing cause did not ‘descend upon particulars’ as required by law and it disclosed no defence to the claim of the respondent. The third issue formulated by the appellant is also resolved against the appellant.’]
.
.
↪️ ISSUE 4: IN RESPONDENT’S FAVOUR.
[‘What agitates my mind most dramatically is whether the appellant intends for the court to apply section 132 of the Evidence Act to only the piece of evidence he now relies upon and do selective justice or apply the law on broad principles. Should the court disapply section 132 of the Evidence Act to exhibits A1 and in the interest of the appellant? I don’t think so. Exhibit A1 is the appellant’s letter of application for N180,000.00 loan addressed to the manager of the respondent, wherein the appellant undertook as follows; ‘… I promise to make a settlement within six months initially.’ The appellant did not challenge this evidence at the trial court and still does not challenge it in this court but he urges this court to hold that the trial court ought to have deduced that the action was pre-mature from the condition that the appellant was supposed to pay one thousand naira per month even when he failed to make this desperate inference in his affidavit showing cause. Exhibit is form No. 3483 of the respondent, annexed to the affidavit in support of the motion for summary judgment in proof of the averment that the respondent last serviced his savings account/repaid his debt, on the 8th of February, 1988, eight years before the respondent filed an action against the appellant, yet, the appellant urges the court to infer that the loan had not fallen due, when he had defected for eight years and failed to repay a loan he admits to have obtained. The appellant has not challenged any of the exhibits pleaded by the respondent at the lower court and he did not tender any exhibit for himself but, he urges the honourable court to draw inferences from the exhibits tendered by the respondent wherever he believes such inference will be in his favour, if such inference were in the interest of justice, I would have drawn it. In my vivid perusal of the record of appeal, only one term/tenor of loan is expressed, and it is the one quoted above in exhibit A1 attached to the respondent’s affidavit in support of motion for summary judgment; which is a term of six months.’]
.
.
.
✓ DECISION:
‘In the final analysis, I agree with the learned trial Judge that theappellant’s affidavit showing cause disclosed no defence to the claims of the respondent. I affirm the judgment of the trial court, this appeal is bereft of any credibility in my consideration and I accordingly dismiss same. Costs of N5,000.00k is hereby awarded to the respondent.’
➥ FURTHER DICTA:
⦿ FAIR HEARING MUST BE DETERMINED FIRST AMONG OTHER ISSUES
The first issue formulated by both parties in this appeal is most germane, since it borders on the constitutional right of fair hearing, it is settled that where fair hearing has been made an issue by a party, the court must determine it first of all other issues that there may be. See Babalola v. Oshogbo L.G. (2003) 16 NWLR (Pt. 289) 465 CA. — Denton-West JCA.
⦿ IT IS UNACCEPTABLE TO REFER TO A JUDGE IN THIRD PERSON PRONOUN
Before I continue to analyse the first issue formulated by the parties in the present appeal, I observe with displeasure the foul and unacceptable language of the learned counsel to the appellant in the notice of appeal and amended brief of argument. The learned counsel persistently referred to the learned trial Judge as she/her in the notice of appeal and brief of argument and addressed the learned trial Judge in very scornful and rude terms. For example in the fourth paragraph of the third page in the appellant’s amended brief of argument; “ she should have adjourned the case to a later date … and also the appellant’s counsel had appeared before her on atleast three different occasions …” Also at page five, (line sixteen of paragraph three) of the appellant’s amended brief of argument; “ she should have realized that …” In this jurisdiction, there is no ‘she/her’ on the bench, every magistrate is his worship and every Judge/Justice is his lordship and are only properly referred to as the learned trial Judge or the learned Justice, the respect that the bench accords the bar must be reciprocal. I am of the firm opinion, that irrespective of the different views of a Judge and a counsel on the issues involved in a case, no respect should be lost between them. The learned counsel for the appellant therefore erred and ought to be brought to order concerning his manner of address. On proper mode of addressing Judges; the Supreme Court observed thus in Global Trans S. A. v. Free Enterprise Nig. Ltd (2001) FWLR (Pt. 40) 1706, (2001) 5 NWLR (Pt. 706) at 426 SC Per Kalgo JSC at page 442, paragraphs A – C. Wherein he said:- “Issue two of the respondent before the Court of Appeal as seen in its brief on page 58 of the record reads:- ‘Whether she concluded correctly that the plaintiff had no locus standi .’ It is common ground that the trial Judge in this case was a lady , and the word, “she” in issue 2 referred to the learned Judge. This is a very bad way of showing discourtesy to a lady Judge or in fact any Judge at all by referring to him or her in third person pronoun. It is absolutely unethical and unpardonable and whether the Judge is a he or she, reference should be made to the learned trial Judge or learned Judge or even Hon. Judge. I was very disturbed and disappointed to observe that this brief was coming from the chambers of a respectable Senior Advocate of Nigeria. I hope this type of thing will never happen again.” For lady Judges believe in issues relating to their judicial functions , that mere gender discrimination should not be alluded to them without due corresponding respect, hence they are brother Judge or sister Judge if and when the situation demands it but not for purposes of disrespect as it was obviously done here. — Denton-West JCA.
⦿ POSITION OF THE LAW ON PRE-JUDGEMENT INTEREST
The law is settled on the prerequisite for the award of pre-judgment interest. The interest must have been claimed in the writ and statement of claim, and evidence must have been led in support of the claim. The cases of Henkel Chem. Ltd v. A. G. Ferrero and . Co. (2003) 4 NWLR (Pt. 810) at 306, (2004) FWLR (Pt. 188) 1078 and F. B. N. Plc v. Excel Plast. Ind. Ltd (2003) FWLR (Pt. 160) 1624, (2003) 13 NWLR (Pt. 837) at 412 are succinct on the subject of pre-judgment interest. — Denton-West JCA.
⦿ WHAT AFFIDAVIT SHOWING CAUSE MUST CONTAIN – UNDEFENDED LIST
In the interest of justice, I will restate the principles of Macaulay v. Nal Merchant Bank Ltd (supra) , on the requirements of affidavit showing cause which the learned trial Judge relied upon in his ruling at pages 93 and 94 of the record of appeal; “(a) condescend upon particulars and 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. state whether the defence goes to the whole or part of the claim, and in the latter case specify the part; when the defence is that the defendant is not indebted to the plaintiff, state the grounds on which the defendant relied as showing that he is not indebted. A mere general denial that the defendant is not indebted will not suffice. where the affidavit states that the defendant is not indebted to the plaintiff in the amount claimed or any part thereof, state why the defendant is not so indebted and to state the real nature of the defence relied on; A (e) … (f) … (g) in all cases, give sufficient facts and particulars to show that there is a bona fide defence. — Denton-West JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Denton-West JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ FAIR HEARING EXTENDS TO THESE
It is further instructive that the decision of the Supreme Court in Ndukauba v. Kolomo (2005) All FWLR (Pt. 248) 1602, (2005) 124 LRCN 479 at 492, Oguntade JSC emphasized on the enshrined provisions of section 36 of the 1999 Constitution as regards fair hearing when he said:- “In a civil case the principle of fair hearing in relation to a plaintiff translates into these; A plaintiff or any party is entitled to counsel of his choice. A plaintiff must be afforded the opportunity to call all necessary witnesses in support of his case. A plaintiff by himself or counsel must have the opportunity to cross-examine or otherwise challengethe evidence of witnesses called by his adversary. At the close of the case and in accordance with the relevant rules, a plaintiff must have the same right as given to his adversary to offer by his final address on law in support of his case.” See Att.-Gen., Anambra State v. Nwobodo (1992) 7 NWLR (Pt. 256) 711; Consortium MC v. NEPA (1992) 6 NWLR (Pt. 246) 132; Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt. 147) 266; 7UP Bottling Co. Ltd v. Abiola and Sons (Nig.) Ltd (1995) 3 NWLR (Pt. 383) 257 SC ; Ebele v. Ikweki (No. 2) (1995) 7 NWLR (Pt. 405) 91.
➥ REFERENCED (OTHERS)
