Summary Judgment Not Granted When Defence Raises Triable Issues (1)

In the Court of Appeal,

Holden at Lagos

On Monday,July 4,2011,

Before Their Lordships:

Clara Bata Ogunbiyi justice, Court o/Appeal,’

John Inyang Okoro justice, Court o/Appeal,’

Mohammed Ambi-Usi Danjuma,justice, Court o/Appeal,’

Between          CA/L/S04/2010

Beloxxi Industries Ltd,

Obi Ezeude (defendants/appellants)

and

Hwa Tai Industries

Berhard ltd (claimant/respondent).

The learned trial judge in the circumstance of this case and as rightly submitted by the learned appellants’ counsel, did err in law in entering summary judgment on an amount, which is being contested and/or disputed by the defendant/appellants. In other words, the learned trial judge should have declined entering summary judgement, this is premised on the finding that triable issue had been raised in defence of the suit by the defendants/appellants therein.

So held the Court of Appeal Holden at Lagos, Nigeria, in a unanimous leading judgment delivered by his Lordship C.B. Ogunbiyi (JCA), J.I Okoro, M.A. Danjuma, (JCA) concurring while allowing the appellant’s appeal.

The parties were represented by L.C Ilogu with C.E. Aziah for the appellant while the respondent was not represented.

The appeal at hand is a product of a ruling of the High Court of Lagos State sitting at Ikeja delivered on the February 4, 2010, and was made following the claimant/respondent’s application dated April 2, 2009, wherein the following reliefs sought were as follows:

• An order entering final judgment against the defendants jointly and severally in the sum of USD 111,7848,09 (One hundred and eleven thousand, seven hundred and forty eight dollars and nine cent) being debts owed the claimant by the defendants in respect of goods supplied to the defendants, which the defendants have defaulted to pay for;

• An order directing the defendants to pay interest on the said sum at the rate 45 per cent per annum from August 4, 2004, till full and final judgement debts is paid;

• An order directing the defendants to pay N2,000,000.00 (Two million naira) general damages to the claimant”.

The application was supported by a 13-paragraph affidavit and three Exhibits – A, B and C, as well as a written address dated April 2, 2009. The defendant/appellants opposed the application by filing a  15 paragraph counter-affidavit accompanied with five Exhibits AEl-AES and also a written address dated May 18, 2009.

The defendants/appellants maintained that in summary judgment proceedings, the court is only obliged to determine whether the defendants have made out triable issues and to proceed to trial of the action on the merits where it finds that a case has been made out. It was further maintained that the suit was an abuse of process given that the same issues were being tried in Suit No. 10/1070/2008 between the same parties.

The learned trial judge in his ruling date February 14, 2010, and at page 140 of the additional record of appeal formulated two issues upon which the application was determined as follows:

• Whether based on the affidavit evidence before the honourable court, the defendants can be said to have admitted owing the sum of USDll,748.09 (one hundred and eleven thousand, seven hundred and forty dollars nine cents);

• Whether there was an abuse of the court process by the institution of the suit based on the fact that the subject matter of this current suit is already being canvassed in the suit No. 10/1070/2008, between the same parties”.

On pages 143 and 144 of the additional record of appeal, the learned trial judge held and said:” … the defendants’ averments are clear and unambiguous and the court is satisfied from the fact averred in the said paragraphs that the defendants’ admission of its indebtedness to the claimant in the amount stated is clear and unequivocal. In view of the above facts, I find this to be a clear admission of indebtedness to the applicant only in the admitted sum and find no need to consider any other evidence in the determination of whether or not there was an admission of indebtedness to the claimant by defendants in that sum. A defendant is precluded from retracting his admission of specific facts placed by a plaintiff. Such facts having been admitted, no further proof of their truth is required. The defendant is held bound by the facts and the trial court would be justified in acting upon it. Adeye VS. Adesanya (2001) 6 NWLR (Pt.70B) page 1 at3.

In the light of the above, I find the defendants’ admissions to be clear, unequivocal, specific and unambiguous. On the above premise, I hereby enter judgment for the claimant in the admitted sum of USD 106,748.09 (one hundred and six thousand, seven hundred and forty-eight dollars and nine cents) in its naira equivalent. The defendant is further ordered to pay the interest on the admitted sum at the rate of 10 per cent from August 4, 2004, till full and final judgment sum is paid.

I am of the opinion that this present suit is not an abuse of the court process on the ground that an abuse of process occurs when a claimant uses legal process to harass or irritate an adversary or employs it to impede the administration of justice.

In other words, abuse of process arises where the court process is being used mala fide. It is not enough that because two suits have been instituted against the same parties on the same subject matter. He has to go further to establish that claimant’s suit was motivated mala fide, which in my opinion, he has failed to do

Nwoboshi v State (1998) 10 NWLR (Pt. 568) Page 131 at 141.” The cumulative summary of the findings by the learned trial judge are to the effect that:

• The defendants have admitted owing the plaintiffs/respondents, hence the reasons for entering judgment for them in the sum of USD106,748.90 (one hundred and six thousand, seven hundred and forty eight dollars and nine cents) in its naira equivalent;

• The present suit is not an abuse of the court process as the defendants/appellants have not shown that the action is motivated by mala fide.

The defendants/appellants being dissatisfied by this ruling have now appealed against same by filing a notice and grounds of appeal dated and filed on February 18, 2010.

In accordance with the rules of court, befits were exchanged between parties. A reply brief was also filed on behalf of the appellants.

From the existing five grounds of appeal, the appellants formulated five issues, which are as follows:

• Whether the trial judge was right in law to have proceeded to summarily try the two 2/0 issues identified as arising for determination instead of al owing the defendants to defend and try those issues on the merits;

• Whether the learned trial judge erred in law not granting the defendants leave to defend the action when the defen­dants had met the requirements of Order 11 Rules 4 and 5 of the High Court of Lagos (Civil Procedure) Rules, 2004;

• Whether the learned trial judge was entitled in law to enter summary judgment when the conditions had not been met; • Whether the trial judge was right in holding that the claimant’s suit was not an abuse of process; and

• Whether the trial judge was right in awarding interest to the claimant from the August 4, 2004, till full and final judgment sum is paid:

On behalf of the respondent, the lone issue formulated was: • Whether there is any good defence whether in law or fact furnished by defendant or fundamental defect in procedure adopted by trial court, which is capable of impeaching the findings, decision and order of the trial court in its ruling of February 4,2009, now being appealed against.

From the five issues raised by the appellant and also the one formulated by the respondent, the perusal of the sum total could be summarised into two issues as follows:

• Whether the learned trial judge was right in law to have summarily tried the two (2) issue identified instead of allowing the defendants to defend same on the merits; and

• Whether the learned trial judge was again right in law in holding that the claimant’s suit was not an abuse of process.

The 1st issue questions the propriety of the learned trial judge in summarily trying and disposing of the case without giving the defendant/appellants the opportunity to defend the suit. The appellants grouse, therefore, is to the effect that the lower court failed to. properly identify the issues before the purpose of summary judgment under Order 11 of the High Court of Lagos State (Civil Procedure) Rules2004.

Culled from The Guardian.