United Bank For Africa Plc & Anor V Alhaji Babangida Jargaba (2007)

LAWGLOBAL HUB Lead Judgment Report

T. MOHAMMAD, J.S.C

With the leave of the trial court, the plaintiff, who is the respondent in this appeal, filed a writ of summons on the undefended list against the defendants. The defendants are now the appellants before this court. They filed their notice of intention to defend and attached to it an affidavit setting out the grounds of their defense.

1st appellant is a commercial bank with its head office in Lagos. 2nd appellant is a manager with the Kaduna North Branch of the 1st appellant. The respondent is a businessman resident in Funtua. Sometimes in 1999, the respondent was introduced to the 2nd appellant in Kaduna for the purposes of purchase of fertilizers in commercial quantities. When the plaintiff met the 2nd defendant, the plaintiff inquired from the 2nd defendant if there were fertilizers for sale in commercial quantities and he said yes, but that the fertilizers were being sold by the 1st defendant. The 2nd defendant informed the plaintiff that a truck load of fertilizers was sold at N600,000.00 (six hundred thousand naira) i.e. N1,000.00 per bag. The plaintiff purchased a bank draft from Funtua branch of the 1st defendant for seven truck loads of fertilizers. The draft was made payable to the Kaduna North office of the 1st defendant where the 2nd defendant has an office. With further assurances from the 2nd defendant to the plaintiff that the 2nd defendant was having fertilizers in large quantities to dispose of, the plaintiff purchased another bank draft from Afribank, Malumfashi branch, made payable to the 1st defendant for another sets of truck loads of fertilizers. In all the plaintiff made payment in bank drafts to the tune of N12,690,000.00 for the truck loads of fertilizers to the 1st defendant on the instruction and directives of the 2nd defendant. When the plaintiff went to the 2nd defendant in order to evacuate his truck loads of fertilizers, the 2nd defendant directed the plaintiff to the warehouse/premises of a Company called Barmani Holdings Company (Nig.) Ltd, in Kaduna. When the plaintiff got to Barmani Holdings in his bid to evacuate his fertilizers, he was told that there was a price increment of N50.00 per bag. The plaintiff conceded to pay the increment for the truck loads of the fertilizers despite his initial protest and reluctance.

The plaintiff, at a later date, started the evacuation of the truck loads of fertilizers and on evacuating the 9th truck load of fertilizers at Barmani Holdings, the plaintiff was informed that there were no more fertilizers to evacuate. At the time of evacuating the 9th truck load of fertilizers the plaintiff’s outstanding balance was N6,960,000.00, hence, the plaintiff went back to the 2nd defendant to demand a refund of the said balance. On this demand, the plaintiff was paid the sum of N5million, leaving a balance of N1,960,000.00. On several occasions when the plaintiff visited the 2nd defendant to ask for the payment of his money, the plaintiff only succeeded in getting an undertaking to pay from the 2nd defendant. In 1999, the 2nd defendant wrote a memo, reminding the 1st defendant of the plaintiff’s balance yet unpaid. Nothing was forthcoming from the defendants. The plaintiff averred that the defendants have no defense to his claim. In their supporting affidavit of notice of intention to defend the action, the defendants denied paragraphs 7-24 of the plaintiff’s affidavit in support of the writ of summons. The plaintiff was informed by the 2nd defendant that the remaining stock of fertilizers had been sold to BARMANI HOLDINGS LTD and that the plaintiff was advised by the 2nd defendant to contact BARMANI HOLDINGS LTD, if he wished to buy fertilizer. The defendants averred further that the plaintiff bought some bank drafts in the sum of N4.2 million and N7.8 million, payable to BARMANI HOLDINGS LTD for the purchase of 20 trucks of solar urea fertilizer. The plaintiff collected only 9 truck loads of fertilizers from BARMANI HOLDINGS LTD and BARMANI HOLDINGS LTD refunded to the plaintiff the sum of N5 million in respect of 11 truck loads of fertilizers which were not supplied to the plaintiff. The defendants claimed that they were not responsible for this balance but BARMANI HOLDINGS LTD, since the defendants were never part of the transactions between the plaintiff and BARMANI HOLDINGS LTD. The defendants, they claimed, only acted as Bankers to both the plaintiff and BARMANI HOLDINGS LTD and it ought to account for that balance of payment due to the plaintiff. The defendants denied ever making any undertaking to pay the plaintiff. After considering the arguments of learned counsel for the respective parties and the affidavit evidence and documents tendered in evidence before him, the learned trial Judge found that there was no defense on the merit made by the defendants. He accordingly entered judgment against the defendants and in favour of the plaintiff. The defendants were dissatisfied with the trial court’s judgment and they appealed to the court below. The court below affirmed the decision of the trial court. Dissatisfied further, the defendants appealed to this court on four grounds of appeal as set out in their notice of appeal contained on pages 129 to 133 of the printed record of appeal now before this court. Parties filed and exchanged briefs of arguments in compliance with this court’s rules. The appellant formulated two issues for our determination which read thus:

“1. whether the court below was right holding that the appellants’ affidavit did not disclose a defense on the merit.

2. whether there was admission of the respondent’s case.”

The respondent adopted the two issues formulated by the appellant as set out above.

It is the submission of learned counsel for the appellants that the facts in the affidavit in support of the writ disclosed triable issues. The respondent, they contended, bought the fertilizers from Barman Holdings Nigeria Ltd and the appellants only acted as Bankers to Barmani Holdings Nigeria Ltd and the respondent in effecting payment. If there is shortage in the delivery of the fertilizers, it is from Barmani Holdings Nigeria Ltd that the respondent should look for redress. Learned counsel questioned the propriety at that stage of the trial court to look at proof of the defense raised in the affidavit evidence, when the requirement of the law for such action is to raise triable issues and that complete defense need not be shown by the defense. He referred to the case of Federal Military Govemment v. Sani (1990) 4 NWLR (Pt.147) 688,(1990) 7 SCNJ 159. It was further argued for the appellants that they raised the defense to the effect that the respondent did not buy fertilizers from them but from a third party Barmani Holdings Nigeria Ltd and that appellants acted as agents to the respondent and Barmani Holdings (Nig.) Ltd. Learned Counsel submitted that these facts, if proved, would constitute triable issues. Learned counsel relied on the case of Federal Military Government v. Sani (supra) to contend that once a defendant deposes to facts which cast doubt on the claim of the plaintiff, such a defendant ought to be granted leave to defend.

In his submissions, learned counsel for the respondent contended that the respondent purchased and paid for the truck loads of fertilizers from the appellants for which there was an outstanding sum of N 1,960,000.00. The appellants, he argued further, failed and refused to tender the drafts referred to by the respondent in his affidavit in support of the writ of summons which negates the provisions of section 149(d) of the Evidence Act. Learned counsel stated further that the appellants’ affidavit in support of their notice of intention to defend in relation to exhibits ABJ 1-3 reveals that the alleged defense of the appellants were meant to waste the precious time of the courts. The cases referred to by the appellants: Federal Military Government v. Semi (supra); Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt.144) 283, 6 SCNJ 117 are dissimilar with the facts of this appeal. He contended that the trial court exercised its discretion judicially and judiciously and hence, this court is urged to affirm the decisions of the two lower courts and decline to make any order transferring this appeal to the general cause list as there is nothing to be heard on the merit.

Summary judgments are resorted to by courts and given to the plaintiff without the necessity of a plenary trial of an action. They are devices available for prompt and expeditious disposal of controversy without trial when there is no dispute as to either material fact or inferences to be drawn from undisputed facts, or if only question of law is involved. The plaintiff before the trial Court, filed and moved an ex-parte motion on 9th March, 2000. Among the reliefs asked for were:

“(2) An order of court granting leave to plaintiff/applicant to file his writ (summons against the defendant/respondent under the undefended list procedure.

3. A consequential order making the annexed-writ of summons as undefended suit.” The learned trial Judge granted the reliefs and granted leave to the plaintiff/applicant to file writ of summons against the defendants /respondents under the undefended list procedure. He further ordered that same be marked as ‘Undefended’ and be served on the defendants along with other court processes. The defendants filed a notice of intention to defend supported by an affidavit of 7 paragraphs.

At the end of his consideration of the whole matter, the learned trial Judge concluded in the following words:

“It is true that a defense that I am not liable is a defense. But from the facts of their case and the affidavit evidence and documents there is no defense on the merit. I accordingly enter judgment against the 2nd defendant in favour of the plaintiff in the sum of N1,960,000.00 against 1st and 2nd defendant”.

The court below affirmed the trial court’s judgment (Reported in (2002) 2 NWLR (Pt.750) 200. In his contributory judgment, Salami, JCA, commented as follows:

“All the appellants need do is to show that there is a triable issue or a defense that is not vague or sham … Before a matter is transferred to the general cause list the affidavit accompanying the notice of intention to defend must disclose a defense on the merit and not a mere denials …. ”