Alh Dauda Haliru V. Unity Bank Plc (2016) LLJR-CA

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OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. 

 The Respondent, as Plaintiff before the lower Court, filed along with his Writ of Summons and Statement of Claim, an application for Summary Judgment before the High Court of Kaduna State. Kabiru Daboh J entered judgment as prayed. Dissatisfied with this Judgment, the Appellant has appealed to this Court by Notice of Appeal, dated 12/2/14 and filed on the same date.

Briefs of Argument were filed and adopted in Court by Counsel to the parties. The Appellant’s Brief of Arguments, settled by Abubakar Ashat Esq, raised 3 issues for determination, namely:
1. Whether the Respondents claim which involved compound interest was one that can be brought under the summary judgment procedure.
2. Whether the Respondents claim which cannot be ascertained lrom the Affidavit evidence without resort to extrinsic accounting sources was one that can be brought under the summary judgment procedure and judgment entered without oral evidence.
3. Whether the refusal of the lower Court to hear the Appellants counter claim was not a breach of the Appellant’s right to fair hearing

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M.I. Abubakar Esq, in the Respondent’s Brief, formulated 2 issues for determination, as follow:
1. Whether the lower Court was right in entering judgment for the Respondent under the summary judgment procedure.
2. Whether the failure of the lower Court to make a specific pronouncement on the Appellant?s counter claim amounted to a denial of fair hearing to the Appellant.

I shall adopt, as the sole issue for determination, that of the Respondent, as it encapsulates the issues in contention in this case
The issue for determination, accordingly is:
Whether the lower Court was right in entering judgment for the Respondent under the Summary Judgment procedure?

The Appellant argues that the Respondent was not entitled to bring his claim under this procedure as its claim was not a liquidated money demand but one that requires explanation or proof as to how the sum and interest were arrived at. Even though compound interest can be charged, the claim for same cannot be brought under this procedure. Where the actual indebtedness cannot be ascertained without resort to extrinsic accounting knowledge, the

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Summary Judgment procedure should not be used. The case should thus have been transferred to the general cause list. He cited Intercontinental Bonk Ltd v Brifina Ltd (2012) All FWLR part 639 Page 7792; Barclays Bank of Nig Ltd v Abubakar (1977) NSCC 415.

In response, M.I. Abubakar Esq, citing Order 11 of the Kaduna State High Court (Civil Procedure) Rules 2007 submitted that these rules are not restricted to a claim for a debt or liquidated demand. By Order 11 Rule 1, the procedure is applicable in any situation where a Plaintiff believes that there is no defence to the action and having filed the requested processes. He decried the application of the authorities cited ‘willy-nilly’ to all cases involving summary judgment procedure. Giving the definition of “liquidated money demand”, he submitted that the present case fell within that definition. He cited the cases of Nortex (Nig) Ltd v Franc Tools Co. Ltd (1997) 4 NWLR Part 501 Page 603 at 609 and Micro international Agency Ltd (2012) 2 NWLR Part 7285 Page 564; Thor Ltd v FCMB (2005) 14 NWLR Part 946 Page 696.

?The facts of this case, as contained in the Respondent’s Statement of Claim, and in the

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affidavit in support of its application for Summary Judgment, are that, following a request by the Appellant, by letter dated 17th September 2010 for a temporary overdraft facility of N2.5 Million to enable him pay his drivers allowance and to purchase spare parts, the Respondent granted the same for a period of 30 days, subject to the terms thereon stated. Due to the default of the Appellant in repayment of the overdraft as agreed, the Respondent, following an abortive demand to the Appellant by its Solicitor, instituted the present action before the lower Court, claiming by its pleadings and in the Motion for Summary Judgment, the following:
1. AN ORDER entering summary judgment for the Plaintiff/ Applicant against the Defendant/Respondent in terms of the reliefs set out in the Plaintiff/ Applicant?s Statement of Claim viz:
a. The sum of N5,076,874.72 (five million, sixteen thousand, eight hundred and fourteen noira, twelve kobo) being the debit balance outstanding against the Defendant in the Defendant’s individual Current Account with the Plaintiff as at 30th September, 2013 made up of unpaid temporary overdraft principal, interest and

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