(Delivered By CHINWE EUGENIA IYIZOBA, JCA)
This is an appeal against the judgment of Jose J. of the High Court of Lagos State in Suit No. M/632/2010 delivered on 06/07/11. By a letter dated March 1st, 2007, the Appellants applied to the Respondent Bank for a Share Trading Facility in the sum of N500, 000,000 .00 (Five Hundred Million Naira) to enable them purchase and trade in the shares of Blue Chip
Companies. Following the application, the Respondent, by letter dated April 30th, 2007 offered the 1st Appellant the requested Share Trading Facility on expressly stated terms and conditions which were accepted by the Appellants. By the terms and conditions, the Appellants were inter alia to submit a Board resolution of the lst Appellant authorizing and accepting the Share Trading facility; the 2nd Appellant was to guarantee the loan as the Managing Director of the 1st Appellant; the Appellants would engage the services of Union Capital Markets Limited, which is a subsidiary of the Respondent to manage the Appellants' portfolio of shares to be bought with the funds from the Share Trading facility provided by the Respondent; the Appellants would be free to trade on the shares in its Share Portfolio as they desired, but only through Union Capital Markets Limited. All the conditions were complied with and the facility was made available to the Appellants.
By letters dated December 16th, 2008 and June 26th, 2009, the Respondent informed the Appellants that the Share Trading facility had been renewed for continued use by the Appellants. When the Share Trading Facility was due for repayment, the Appellants failed to repay the sum outstanding. The Respondent wrote to each of the Appellants letters dated November 16th, 2009, demanding the repayment of the sum of N576, 014, 383 .00 (Five Hundred and Seventy Six Million Fourteen Thousand Three Hundred and Eighty Three Naira) claimed to be due but the Appellants failed to pay the sum demanded.
Thereafter, the Respondent's Solicitors, wrote to the Appellants letter dated May 26th, 2010 and demanded payment of the outstanding sum of N713, 385, 387 .65 (Seven Hundred and Thirteen Million Three Hundred and Eighty Five Thousand Three Hundred and Eighty Seven Naira Sixty Five Kobo) as at May 13th, 2010. The Appellants replied the letter through their Solicitors denying the debt in its entirety.
Meanwhile, due to the sudden and sharp depreciation in value of the shares purchased with the Share Trading facility as a result of the capital market crash, the Respondent sold the shares purchased, which formed part of the security for the facility granted, and realized the sum of N125, 210, 005 .00 (One Hundred and Twenty Five Million Two Hundred and Ten Thousand Five Naira). This sum when deducted from the sum claimed by the Respondent left a balance of N676, 407, 968 .12 (Six Hundred and Seventy Six Million Four Hundred and Seven Thousand Nine Hundred and Sixty Eight Naira Twelve Kobo) outstanding as at August 31st, 2010.
The Respondent then filed this action initially by Originating Summons. In reaction, the Appellants filed a Notice of Preliminary Objection challenging the mode of commencement of the action as they averred that the facts were highly contested. The lower court in its ruling delivered on March 22nd, 2011, ordered that pleadings be filed. Subsequently, the Respondent filed its Statement of Claim and other frontloaded processes, along with a Motion for Summary Judgment under Order 11 of the High Court of Lagos State (Civil Procedure) Rules, 2004. The Appellant on its part filed a Statement of Defence & Counter Claim, and also filed a Counter Affidavit and Written Address in opposition to the Respondents Motion for Summary Judgment.
After entertaining arguments of the parties, the trial court entered judgment for the Respondent/Claimant in the sum of N676,407,968.12 being the total outstanding sum due to the Claimant as at 31/8/10 and interest on the said sum at the rate of 19% per annum from 31/8/10 until final liquidation.
The Appellants were dissatisfied with the judgment and appealed against it by Notice of Appeal containing two grounds of appeal. The parties filed and exchanged their briefs of argument and in the Appellants' brief they formulated a sole issue for determination as follows:
From a dispassionate examination of the issues raised in the Appellants Statement of Defence and Counter claim, whether the learned trial (SIC) did not prejudge the case of the Appellants by entering a summary judgment in favor of the Respondent without hearing and determining the issues raised on the merits.
On its part, the Respondent also formulated a sole issue for determination which is:
"Whether or not the lower court was right in entering judgment in favour of the Respondent, on the evaluation of its Statement of Claim vis-a-vis the Appellants' Statement of Defence and Counter Claim"
However, the Respondent filed a preliminary objection to the competence of the appeal and formulated this question as the issue to be resolved in the objection:
"Whether or not the Appellants' Statement of Defence and Counter Claim and their Written Address in support of their Counter Affidavit in opposition to the Respondent's Motion for summary judgment are not incurably defective, incompetent and liable to be struck out, having not been signed by a Legal Practitioner in accordance with the provisions of the Legal Practitioners Act, 1962"
Arguing the objection, learned senior counsel for the Respondent referred to the Appellants' Statement of Defence and Counter Claim dated April 18th, 2011 (at pages 119 to 123 of the records) and to their Written Address in Support of the Counter Affidavit filed in opposition to the Respondent's Motion for Summary Judgment, (also dated April 18th, 2011 and found at pages 142 to 146 of the records) and specifically to the signature pages of the said processes. He stated that a simple inspection of the signatures appended to the said processes, would reveal that while the said processes were signed "for and on behalf of P. I. N. Ikwueto, SAN, FCIArb", the name and designation of the person who appended the signature to the process is not stated or contained anywhere in the processes.
The learned silk then submitted that this clearly contradicts the laid down and well established principle as relates to the signing of court processes, enunciated in the celebrated case of OKAFOR VS. NWEKE (2007) 10 NWLR (pt.1043) 521. which case was followed in the more recent case of SLB CONSORTIUM LTD. VS. N. N. P. C. (2011) 9 NWLR (PT.1252) 317. He then argued that the processes are fundamentally defective, incompetent and are liable to be discountenanced and struck out.
He submitted that this issue is germane and fundamental, to the determination of this appeal, as it goes to the root competency of the Appellants' Statement of Defence and Counter Claim and the Written Address in support of its Counter Affidavit to the Respondent's Motion for summary judgment and is thus a jurisdictional issue, which can be raised at any time, even at the Supreme Court for the first time. He cited the cases Of ADESOLA VS. ABIDOYE (1999) 14 NWLR (PT.637) 28 @ 52, B-C; BRONIK MOTORS LTD. & ANOR. VS. WEMA BANK LTD. (1983) I SCNLR, 296.
The learned senior counsel submitted that the signing of the processes failed to meet the standard set by the Supreme Court in SLB CONSORTIUM LTD VS. N.N.P.C. (2011) 9 NWLR (PT.1252) 317 and by this court in the case of NYONG & ANOR. VS. OTU & ORS. (2012) LPELR-8480 (CA)
He submitted that from the signature page of the two processes, it is clear that the signature contained therein, is not that of the Learned Silk, P. I. N. Ikwueto, SAN, FCIArb and it is also clear that whoever signed those processes, failed to state his name underneath his signature and even his designation and it follows therefore that the Appellants' Statement of Defence and Counter Claim and the Written Address in support of its Counter Affidavit to the Respondent's Motion for summary judgment are both incurably bad and should be struck out. Counsel submitted that if they are struck out, it would follow that there was no valid and reasonable defence before the lower court, capable of entitling the Appellants to leave to defend the action in the first place, therefore this instant appeal, against the failure or error of the lower court in discountenancing their defence would become nothing more than an academic exercise. Learned silk while adopting his briefs of argument further referred us to the cases of ABE V SKYE BANK  4 NWLR (PT. 1450) 512 AND P.M.B V. NDIC (2011) 12 NWLR (PT. 1261)253. He urged us to dismiss this appeal.
The learned silk for the Appellants Ikwueto SAN who settled the brief which was argued by Chidinma Okoronkwo (Miss.) responding submitted that the objection of the Respondent is a fundamental misconception of the law and does not go to the issue of jurisdiction which can be raised at any time, even at the Supreme Court. He posited that a question of jurisdiction can only arise and be ascertained from a Plaintiffs Claim or originating process; not from any other process. In other words, the only court process a court is entitled to look at in order to determine questions challenging its jurisdiction or otherwise is the originating process or claim. A court has no business with any other process filed such as Statement of Defence and or Counter Claim. He referred to ADEYEMI V. OPEYORI (1976) 9-10 S.C (REPRINT) 18 AT 31, AND THE GOVERNOR OF CROSS RIVER STATE & ANOR. V. NTA & ORS (2013) LPELR- 19987 (CA).
He submitted that the Respondent did not canvass this issue at trial and as such it is a fresh issue or point which the Respondent never pleaded nor raised before the learned trial Court. Being a fresh issue, the Respondent ought to have sought the leave of this Honourable Court before raising the objection or issue. Not having sought nor obtained the leave of this Court before raising the issue, learned senior counsel submitted, that the objection is incompetent and liable to be struck out. He relied on ADAKE V. AKUN (2003) 7 S.C. 26 AT 30; FAWEHINMI CONST CO. LTD. V O.A.U (1998) 5 S.C. 43 AT 57.
He further submitted that the objection is without merit for being a technical objection in the peculiar circumstances of the instant case. He distinguished the cases cited by the Respondent on the point as having no correlation, whatsoever, with the peculiar facts and circumstances of the instant case, relying on ADEGOKE MOTORS LTD. V. ADESANYA (1989) 5S.C. 113 AT 116 -117 AND BABATUNDE V. P.A.S. & TA. LTD.
Learned silk submitted that the Supreme Court in OKAFOR V. NWEKE (SUPRA) AND SLB CONSORTIUM V. NNPC (SUPRA) reasoned that the processes in those cases were incompetent because by the provisions of the Legal Practitioners Act and the relevant rules of court, a court process must be signed by an identifiable legal practitioner not by a law firm.
Learned silk submitted that unlike in all those cases, the author of the signatures in issue in this case can be identified, and invited the Court to look through and beyond the shades of technicality being projected by the Respondents in their objection and see that the Statement of Defence and Counter Claim sought to be impugned in this appeal was signed by an identifiable legal practitioner as contemplated by law.
He emphasized that the object of a court of law is to seek and attain justice to get to the justice of every case before it, citing the following cases:
UZODINMA V. IZUNASO (NO. 2.) (2011) 17 N.W.L.R. (PT. 1275) 30 AT 75 SC; OYEWOLE V. AKANDE (2009) 15 N.W.L.R. (PT. 1163) 119. S.C; AKINOLA V. V.C UNILORIN V (2004) 11N.W.L.R. (PT. 885) 616: (1997)4S.C.N.J. 147; DAGGASH V. BULAMA (2004) 14 N.W.L.R. (PT. 892) 144 AT 253; AGBAREH V. MIMRAH(2008) ALLF.W.L.R. (PT. 409) 559 AT 585 SC. (2008) 1 S.C. (PT. Ill) 88 AT 111-112; WEST AFRICANPROVINCIALINSURANCECO. LTD. VS NIGERIAN TOBACCO CO. LTD. (1987) 2 N.W.L.R. (PT. 56) 229 AT 306; OSAFILE V.ODILTD. (1990) 5 S.C. (PT.II) 1 (1990) 3 NW.L.R. (PT. 37) 130; FUNDUK ENGINEERING LTD. V. MCARTHUR (1995) 4 N.W.L.R. (PT. 392) 640 AT 652; CHIEF AGBASIV. EBIKOREFE (1997)4 N. W.L.R. (PT. 502) 630 AT 648.
He further submitted that it is the duty of courts to scrutinize and take notice of the content of their records of proceedings. LEADERS & COY LTD V. BAMAIYI (2010) 12 S.C. (PT. IV) 59 AT 71-72. To this end, he invited the Court to find that the signature allegedly signed for and on behalf of "P.I.N. Ikwueto, SAN" in the Appellant's Statement of Defence and Counter Claim, is one and the same signature belonging to CALLISTUS KAYODE ALABI in the Counter Affidavit to the Motion on Notice dated 24th March, 2011 which he deposed to before, the learned trial Court at pages 123 and 141 of the Record. In the said Counter-Affidavit, the said Callistus Kayode Alabi clearly described himself as "Legal Practitioner of 41A Libreville Street, Wuse II, Abuja..." Indeed, in paragraph I thereof, he further confirmed that "I am a Legal Practitioner in the Law Firm of Ikwueto, representing the Defendants herein".
In support of this position, he referred to INEC v. OSHIOMOLE (200) 4 NWLR (Pt. 1132) 607. He urged us to overrule the objection, which he alleged was intended to truncate the course of justice. He cited OGUNSKIN V. AJIDARA (2008) 6 NWLR (PT. 1082) 1 @ 25 - 26.
It is not disputed that the said Appellants' Statement of Defence and Counter Claim dated April 18th, 2011 and their Written Address in Support of the Counter Affidavit filed in opposition to the Respondent's Motion for Summary Judgment were signed "for and on behalf of P. I. N. Ikwueto, SAN, FCI Arb", without the name and designation of the person who appended the signature to the processes. This clearly offends the well established principle as relates to the signing of court processes, enunciated in the celebrated case of OKAFOR VS. NWEKE (SUPRA) which was followed in the more recent cases of SLB CONSORTIUM LTD. VS. NNPC (SUPRA) and ABE V SKYE BANK  4 NWLR (PT. 1450) 512. The standard set by the Supreme Court in the case of SLB CONSORTIUM LTD. VS. NNPC is that:
"All processes filed in court are to be signed as follows;
a.) First, the signature of counsel, which may be any contraption;
b.) Secondly, the name of counsel clearly written;
c.) Thirdly, who counsel represents;
d.) Fourthly, name and address of legal firm.
Once it cannot be said who signed the process, it is incurably bad and rules of court that seem to provide a remedy are of no use as a rule cannot override the Legal Practitioners Act. There must be strict compliance with the law. In the instant case, there was a signature of counsel, but no name of counsel. A signature without a name is incurably bad."
Also in the case of NYONG & ANOR. VS. OTU & ORS. (2012) LPELR-8480 (CA) it was held:
"...that processes filed in court must be signed by a Legal Practitioner recognized by the law. How then does one identify who the signature belongs to if his name is not written. The signature immediately becomes suspect and so is the process. It is important to identify the owner of the signature signing for and on behalf of Matthew Ojua to ascertain whether he is a legal practitioner as envisaged by S. 2(1) of Legal Practitioners Act, Cap. 207, Laws of the Federation of Nigeria, 1990. Affirming this position further, the Supreme Court held in the case of Ogundele & Anor. V. Agiri & Anor. (2009) 18 NWLR pt. 1173 pg. 219 that where a brief is so signed, it is not an irregularity but a fundamental error and such brief may be disregarded or discountenanced "See Okafor V. Nweke (supra)."
However, learned senior counsel for the Appellants has argued that the Respondent failed to raise this objection at the earliest opportunity before the trial court and that it cannot be raised on appeal without leave of the Court since it was not an issue that goes to jurisdiction.
I agree that the earliest opportunity that the Respondent had to raise this issue is at the trial court. At that level, not being an originating process, it did not go to the competence of the action and so would not affect the jurisdiction of the trial court. However, when viewed from the perspective that the said Appellants' Statement of Defence and Counter Claim and their Written Address in Support of the Counter Affidavit filed in opposition to the Respondent's Motion for Summary Judgment form the foundation of this appeal, the objection raised goes to the root of the appeal and the jurisdiction of this Court to determine same.
It is a settled principle that leave of appellate court is not necessary to raise fresh point on appeal where same involves a substantial issue of law. See ONI V. ODEYINKA (1998) 8 NWLR (PT.562) 425 @ 431 F-G; ONOWHOSA V. ODIUZOU (1999) 1 NWLR (PT.586) 173 @ 181 F-H.
There is no doubt that going by the decisions of the Supreme Court in OKAFOR VS. NWEKE (SUPRA); SLB CONSORTIUM LTD. VS NNPC (SUPRA); OGUNDELE & ANOR. V. AGIRI & ANOR (SUPRA) and a host of others, that the issue of competence to sign court process is a fundamental legal issue. To this end, I hold that the failure of the Respondent to seek prior leave to raise this issue will not prevent this Court from entertaining same, as it is a substantial legal question.
Now, looking at the objection on the merits, the learned senior counsel for the Appellant has argued that the basis of the decision of the Supreme Court in OKAFOR V. NWEKE (SUPRA) AND SLBCONSORTIUM V. NNPC (SUPRA) is that by the provisions of the Legal Practitioners Act and the relevant rules of court, a court process must be signed by an identifiable legal practitioner and not by a law firm. I agree.
He further traced the author of the signatures in issue in this case to CALLISTUS KAYODE ALABI a legal practitioner in the firm representing the Appellants in this case. I have looked at pages 112 to 142 of the records of appeal in this matter and I can see that indeed both the Statement of Defence and Counter-claim and the Counter-Affidavit to the said Respondent's Motion for Summary Judgment were filed out of time by the Appellant and were regularized by two Motions for extension of time. In these two Motions and the affidavits and the Written Addresses in their support, the said Statement of Defence and Counter-claim and the Counter-Affidavit all bear the same signature, and that is the signature of CALLISTUS KAYODE ALABI. In the circumstance and in the interest of justice, it cannot be said that, these signatures cannot be identified as that of a known legal practitioner from the records.
Having resolved that the signature in contention is that of CALLISTUS KAYODE ALABI, as aforesaid, I hold that since the object of a court of law is to adjudicate the dispute between parties before it with the aim of doing substantial justice and not merely hinging on technicality, I hold that going by the facts of this case, the said processes are not incompetent and as such would not be struck out as they were indeed signed by an identifiable legal practitioner. See the cases of INEC V. OSHIOMOLE (200) 4 NWLR (PT. 1132) 607 @ 636 - 637AND OGUNSKIN V. AJIDARA (2008) 6 NWLR (PT. 1082) 1 @ 25 - 26.
In INEC V. OSHIOMOLE (SUPRA.) @ PAGES 636 637, this Court held that:
"The days of justice by technicality which is as bad as injustice are over. Justice by technicality has long died in Nigeria for good and has since been buried. The trend these days is to strive to do substantial justice on the merits of the case.
Based on the foregoing, I overrule the objection raised by the Respondent in this case and hold that the appeal before us is competent.
The sole issues formulated by both sides to the appeal are similar. I will adopt the issue formulated by the Appellants in resolving this appeal, which is:
"From a dispassionate examination of the issues raised in the Appellants Statement of Defence and Counter claim, whether the learned trial (SIC) did not prejudge the case of the Appellants by entering a summary judgment in favor of the Respondent without hearing and determining the issues raised on the merits."
Learned senior counsel for the Appellant on the sole issue submitted that the appeal raised substantial issue of lack of fair hearing and ought to be allowed for four simple but germane reasons namely:
a. The determination of the Respondent's claim by way of a Summary judgment effectively foreclosed the determination on the merits of the Appellants Counter-claim which is intrinsically based on the same facts as the whole basis of the Respondents allegation of indebtedness by the Appellants.
b. Notwithstanding that as a general principle, a Counter-claim is considered as a separate claim from the Plaintiff claim, the peculiar facts and circumstances of the instant case enjoined that the Issues raised in the Counter-claim are not overreached and or prematurely determined without hearing on the merits.
c. The determination of the Respondent's Motion on Notice for Summary judgment without hearing and determination of the Issues raised on the merits in effect foreclosed any further determination of the Appellants Counter claim.
d. By the approach adopted by it, the learned trial court rendered nugatory its earlier determination that the parties file pleadings in this Suit and thereby denied the Appellants their right to fair hearing.
He submitted that the Appellants raised sufficient issues before the trial court to warrant a full trial of the case. He contended that it is trite that the object of Order 11 of the Lagos State High Court (Civil Procedure) Rules is to accord the Claimant the opportunity of obtaining a summary judgment without the need for a full-fledged trial of the case on the merits. However, where the Defendant is able to set up a bona fide defence or raise an issue which will necessitate trial, the court will order full trial as the procedure under Order 11 is not punitive or to shut out a defendant who can establish triable issues. He submitted that the trial court had previously determined that the issues raised by the Appellants in answer to the Motion on Notice for summary judgment were substantial and necessitated the filing of pleadings by the Parties, but the trial court without determining the issues raised in the pleadings filed by order of the court proceeded to determine the case in favour of the Respondent thereby altering the effect of its own ruling. He cited the case of ARO V. FABOLUDE (1978) ALL NLR.
Learned senior counsel referred to the case of FMG V SANI (1990) 4 NWLR (PT. 147). 688, and submitted that the summary jurisdiction conferred by Order 11 must be used with great care and a Defendant ought not to be shut from defending unless it is very clear indeed that he has no case in the action under discussion.
He further argued that in showing cause why a Defendant should be allowed to defend the action, a complete defence need not have been shown. He needs only to show that there is a triable issue or question or that for some other reason, there ought to be a trial, which the trial court had found existed in this case. Relying on the cases of UNIVERSITY OF BENIN V KRAUS THOMPSON ORGANISATION (2007) ALL FWLR (PT.362). 1910 and MACAULAY V NAL MERCHANT BANK LTD (1990) 4 NWLR (PT. 144). P. 283 & 322 he argued that a defendant may show cause against the plaintiff's application for summary judgment:
1) By a preliminary or technical objection, e.g. that the case is not within Order 11 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 taking into account to determine, or any other circumstances showing reasonable grounds of a bonafide defence.
He further cited the case of UNITED BANK FOR AFRICA PLC V JARGABA (2007) 11 NWLR (PT. 1045), P. 247 @ 273. to contend that their Defence, Counterclaim and Counter Affidavit to the Motion for Summary Judgment raised triable issues.
learned silk referred to one of the terms of the agreement which provides that "at any point in time, value of shares held by Union Capital Markets Ltd less than 20% margin must cover the balance on the overdraft account" to contend that the Respondent and its agent/subsidiary were negligent in their management of the facility. Appellants in Paragraph 10 of Counter Affidavit to the Motion for Summary Judgment averred that the Respondent and its subsidiary/agent made a drawdown on the account to the tune of N390,000.00 (Three Hundred and Ninety Thousand Naira) without the knowledge and consent of the Appellants. He then submitted that the Appellants did not just make a general traverse but actually raised issues of negligence, fraud and coercion in their Statement of Defence and Counterclaim, Counter Affidavit to the Motion for Summary Judgment, Reply to the Defence to Counterclaim and witness depositions. These issues learned silk contended cannot be effectively resolved without trial. He submitted that the trial court failed to consider all the processes placed before it by the Appellants, citing the case of WOODGRANT LTD V SKYE BANK PLC (2011) 12 NWLR (PT. 1260). P. 61 AT P. 83-84.
The learned silk for the Respondent in response argued that the determination of the Respondent's claim without the Appellants' counter claimed d'd net breach their right to fair hearing because the issues involved in the Respondent's Claim at the lower court and 'those of the Appellants' Counter Claim are quite different. He posited that the Respondent's claim is for an outstanding debt, while the Appellants' Counter Claim is for an alleged refund of the sum of N65, 000,000.00 which the Appellants claim they were threatened and coerced into paying to the Respondent. They are thus separate actions that can be taken independently of each other.
Learned senior counsel submitted that the purpose and intendment of the summary judgment procedure is to prevent sham defenses from defeating the right of parties by delaying and at the same time, causing great loss to the plaintiff who is endeavoring to enforce his rights. He cited MACAULAY VS. NAL MERCHANT BANK LIMITED (1990) 4 NWLR (PT. 144) 283:
SANUSI BROS. (NIG.) LTD. VS. COTIA C.E.I.S.A. (2000) 11 NWLR (PT.679) 566; F.S.B. INT. BANK LTD. VS. IMANO (NIG.) LTD. (2000) 11 NWLR (PT.679) 620 @ 635 A: BONA TEXTILE LTD. VS. ASABA TEXTILE MILL PLC. (2013) 17 WRN. 51 @ 65 LINES 30-40.
He submitted further that the defence to be put up by the Defendant to a summary judgment application should be such that addresses the specific claims of the Claimant and not one of a general or sweeping denial of the claim, or else it would amount to an admission. UNIVERSITY OF BENIN VS. KRAUS THOMPSON ORGANIZATION LIMITED (2007) 14 NWLR (PT.1055) 441 @ 463 E-H; MACAULAY VS. NAL MERCHANT BANK LTD. (SUPRA) @ 306- 307; NISHIZAWA VS. JETHWANI (1984) 12 SC 234.
Learned senior counsel argued that the claim of the Respondent is clear and straight forward. The Appellants applied for and were granted the Share Trading facility of N500, 000, 000 .00 (Five Hundred Million Naira). They accepted the facility and provided the necessary documents and fulfilled all requirements to access the funds. These facts were expressly admitted by the Appellants in paragraph 4 of their Statement of Defence and in paragraph 5 of their Counter Affidavit to the Respondent's motion for summary judgment. The Appellants engaged the services of Union Capital, to manage the share portfolio which they would use the funds to purchase. The facility was renewed on two occasions by the Respondents for the benefit of the Appellants without any complaints or issues.
Upon maturity of the facility, the Appellants failed to repay the sum outstanding. Even after the personal guarantee of the 2nd Appellant was called in by the Respondent, the Appellants still refused to pay up the outstanding sums. Instead the Appellants claimed not to have taken benefit of the facility and alleged that the facility was solely managed by the Respondent and Union Capital and as such they owed no liability to the Respondent. He submitted that this cannot be a valid defence to the action, when there is no evidence anywhere that the Respondent managed the facility and the management of the facility by Union Capital is pursuant to the agreement between the parties. These terms were accepted unconditionally by the Appellants. The management of the facility was placed solely with Union Capital, as clearly stated in the offer letter and accepted by the Appellants who never complained of any breach of the terms.
He argued that the clause that the "Account holding branch would ensure that only cheques drawn in favour of Union Capital Markets Ltd are honoured on the overdraft account" means that no other person can draw from the facility account which was in the name of the 1st Appellant or that no one can be paid any funds from the facility account, except Union Capital as authorized by the Appellants. Therefore, it was not possible that the Respondent would be making withdrawals from the facility funds and therefore the defence raised is a sham.
Learned counsel submitted that if the stock market had hit an unprecedented boom and the shares purchased had appreciated in value, the benefit would have gone to none other than the Appellants. They would not have shifted the benefit to the 'managers of the facility. Why therefore should they seek to shift the liability now, when the shares unfortunately depreciated and lost value? Therefore the attempt by the Appellants to now shift the liability for their contract to Union Capital is quite unconscionable and portrays them as persons, who having taken benefit of a contract now seek to run away from its liabilities. Learned silk cited the cases of DR. K. 0. SOSAN VS. HFP ENGINEERING NIG. LTD. (2004) 3 NWLR (PT.861) 546: EMMANUEL 0. ADEDEJI VS. NATIONAL BANK OF NIG. LTD. & ANOR (1989) 1 NWLR (PT.96) 212 @ 226 & 227.
He urged this Court to affirm the finding of the trial court that the defence that the Respondent and Union Capital breached their duty of care to the Defendants by failing to repay the facility from the sale of shares and dividends is bare and without particulars as the Defendants did not state which dividend was unpaid whilst the Claimant has shown that it indeed sold the shares and realized the sum of N125, 210, 005 .00 which was applied towards liquidating the facility. Counsel urged us to discountenance the defence of negligence raised. He submitted that the Appellant did not show elements of good defence to the action as stated in the case of UNIVERSITY OF BENIN VS. KRAUS THOMPSON ORGANIZATION (SUPRA).
Mr. Sofola further submitted that the Respondent had no role and indeed played no role in the management of the facility and in making disbursements from the loan account, and that the Appellants were not consistent in their pleadings as they made no mention in their Statement of Defence of the sum of the alleged N390, OOO, 000 .00 claimed as a draw down done by the Respondent and Union Capital, instead the only sum mentioned was the sum of N65,000,000.00 claimed as a payment made under coercion. Learned silk submitted that the lower court was correct to order the filing of pleadings to the originating summons under different consideration as at the time the court ordered that pleadings be filed, the Appellants had not even filed a Statement of Defence before the court, and so the court could not have determined if summary judgment procedure will avail the Respondent.
The real issue to be resolved in this appeal is whether the Statement of Defence and Counter Affidavit filed by the Appellant in answer the claims of the Respondent in this case raised a triable defence.
In the case of UNITED BANK FOR AFRICA PLC V JARGABA (SUPRA) cited by learned senior counsel for the Appellants, the Supreme Court held as follows at P. 273:
The decision as to whether or not a defence under the undefended list procedure discloses a triable issue does not depend so much on the discretion of the court Rather, it involves the evaluation of the affidavit evidence before the court for it to determine whether or not triable issue has been made out by the defence"
Both parties in their argument of this matter made reference to the case of UNIVERSITY OF BENIN V KRAUS THOMPSON (SUPRA) which followed the decision of the Supreme Court in MACAULAY V NAL MERCHANT BANK LTD (1990) 4 NWLR (SUPRA) wherein the conditional requirements expected to be satisfied by a defendant before he would be allowed to defend an action brought under summary judgment procedure were stated as follows:
"The defendant may show cause against the plaintiff's 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 taking into account to determine, or any other circumstances showing reasonable grounds of a bona fide defence".
Thus the real issue boils down to examination of the defence raised by the Appellants in this case with a view to finding out whether it indeed constitutes a triable issue with reference to the contract between the parties.
The core of the defence of the Appellants is that both the Respondent and Union Capital Markets Ltd which is its subsidiary were negligent in the management of the share portfolio of the Appellant. In order to determine the issue of negligence raised, reference must be made to the terms of the agreement between the parties as contained in the offer letter, particularly the said transaction dynamics at page 11 of the record of appeal. It contains the following terms:
"Upon acceptance of the facility, utilization will be under the following operational dynamics:
Company will engage Union Capital Markets Ltd to manage its share portfolio
Securities to be traded shall be those of blue chip companies as would be advised by Union.
Cheques drawn on the overdraft facility are to be issued in favour of Union Capital Marketers Ltd who would give the bank a copy of the contract notes of securities purchased.
Union Capital would purchase the shares and keep them in its books to the order of UBN.
Company would be allowed to trade on these shares at will but only through Union Capital Marketers Ltd who will ensure that all sales proceeds are passed through the company's account in our books.
Account holding branch would ensure that only cheques drawn in favour of Union Capital Marketers Ltd are honoured on the overdraft account.
At any point in time, value of shares held by Union Capital Marketers Ltd less 20% margin must cover the balance on the overdraft account.
On monthly basis a copy of the statement of account from CSCS must be forwarded to the Bank.
Capital gain and dividend should be applied to service the debt obligations.
To be able to raise a genuine issue of negligence in their defence, the Appellants must show in their pleadings or the Counter-Affidavit filed that there was a duty of care owed and that the Respondent breached that duty of care. The Appellant raised the issue of duty of care in paragraphs 9, 10, 11 of their pleading. In the light of the transaction dynamics set out above, it was not the responsibility of the Respondent to manage the account but that of Union Capital Marketers Ltd which the Appellant agreed to appoint to do so. Based on this, the Appellants need to plead facts which show that the Respondent usurped the responsibility of the said Union Capital Marketers Ltd. In the absence of such facts, I do not think that the Appellants have raised any triable issue of breach of duty of care against the Respondent as ordinarily, the Respondent has no duty to manage the trading activities from the share facility account. Based on the facts pleaded, the issue of breach of duty of care can be raised against Union Capital Marketers Ltd but not against the Respondent in the circumstance but it is not a party to this action. Consequently, I hold that the trial court was right in holding that this line of defence is a sham. The issue does not constitute a good defence on the merits answering the claim of the Respondent for the loan admittedly granted to the Appellants. It may well be a serious point of law, but it cannot be raised against the Respondent, but rather against Union Capital Marketer Ltd whom the Appellant agreed to appoint to professionally manage the, share trading account. It does not constitute a dispute as to the facts of the transaction deserving trial in the circumstance of this case. See the cases of UNIVERSITY OF BENIN V KRAUS THOMPSON ORGANISATION (SUPRA) AND MACAULAY V NAL MERCHANT BANK LTD (SUPRA).
I hold also with regard to the alleged unauthorized withdrawal of the sum of N390.000.000.00 from Appellants' said account for trading should appropriately be raised against Union Capital Marketers Ltd. It is the same company which is distinct from the Respondent that owes duty to the Appellants with respect to its management of the account.
Apart from pleading generally that the statement of account annexed did not cover the period of the transaction, the Appellants did not challenge the correctness of the entries therein.
It has been held that the defence of a Defendant in a summary judgment procedure in order to disclose grounds for grant of leave to defend the action must 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 I hold that the Appellants disclosed insufficient particulars of their complaint
against the said Statement of Account. See MACAULAY VS. NAL MERCHANT BANK LTD. (SUPRA) AND NISHIZAWA VS. JETHWANI (1984) 12 SC 234.
The Appellants have also strongly argued that the trial court having earlier found that the facts of the case are contentious and deserved to be tried on pleadings and not merely on originating summons, cannot now determine same summarily under Order 11 of the High Court of Lagos State (Civil Procedure) Rules.
In resolving this point the trial court held:
"Before concluding, I must say that the argument that the application for summary judgment is an abuse of court process is misconceived. The fact that the court ordered that the originating summons earlier filed be converted to pleadings does not mean that an application for summary judgment cannot be filed. In an originating summons, the case is heard on the basis of undisputed facts but in an application for summary judgment, the court looks at the facts even when they are disputed and then decides whether or not the defendant should be allowed to defend the case. Thus filing of pleadings is not an automatic guarantee that the matter will be set down for trial."
In addition to the above, it must be noted that at the time the trial court ruled that originating summons procedure was not proper, the Appellants had not filed any defence to the action. It is only with the benefit of the defence filed by the Appellants that the trial court can resolve whether the matter is one suitable to be dispensed with under Order 11 procedure. To this extent the previous ruling of the trial court did not bind it. Further, the requirement of filing statement of Defence was introduced in the amendment to the original provision of the Rules by the abolition of demurrers; the intention being to facilitate quicker dispensation of justice.
I hold that the Appellants, who admitted taking the share trading loan from the Respondent bank could not deny being indebted to the Respondent without showing in its pleadings how the loan was repaid or indeed valid grounds against the Respondent on which they contend that they are not liable to repay the loan.
In the final result, I find no merit in this appeal and it is hereby dismissed. I affirm the judgment of Jose J. of the High Court of Lagos State in Suit No. M/632/2010 delivered on 06/07/11. I make no order as to costs.
CHINWE EUGENIA IYIZOBA
JUSTICE COURT OF APPEAL
SAMUEL CHUKWUDUMEBI OSEJI
My learned brother C.E IYIZOBA JCA has afforded me the privilege of reading before now the lead judgment just delivered.
He has adequately dealt with the issues raised for determination and I am in agreement with the reasoning and conclusions reached therein.
In the circumstance, I also hold that this appeal lacks merit and it is accordingly dismissed.
I abide by the consequential orders made in the lead judgment including that of costs.
JAMILU YAMMAMA TUKUR JCA.
I read before today the lead judgment just delivered by my learned brother CHINWE EUGENIA IYIZOBA JCA. I adopt the judgment as mine with nothing useful to add.
CHIDINMA OKORONKWO (MISS) FOR THE APPELLANT
O. SOFOLA SAN WITH 0. OGUNNAIKE ESQ FOR THE RESPONDENT.