General Oil Limited & Anor V. Fsb International Bank Plc (2004)

LawGlobal-Hub Lead Judgment Report

D. MUHAMMAD, J.C.A.

The Lagos Division of thy Lagos State High Court on 20th October, 2000, ruled in favour of the respondent in the instant Appeal. It had taken out a writ of summons against the appellants claiming jointly and severally the sum of N9,480,515.229k being outstanding balance of a loan advanced to the 1st appellant.

This amount included a 21% interest per annum on the borrowed sum. 2nd appellant guaranteed the loan. Respondents statement of claim was filed on 3rd July, 1997. The appellants’ statement of defence and counter-claim was dated and filed on 10th October, 1997.

The respondent filed a summons for judgment for the claimed sum on 3rd November, 1997, to which the appellants filed a counter-affidavit. Parties have filed and exchanged their written addresses on the summons for judgment. In a considered ruling, dated 20th October, 2000, the court having found that appellants’ statement of defence and counter-claim had not disclosed a defence on the merits to respondent’s claim, entered judgment in favour of the latter. Appellants are dissatisfied with the ruling of the lower court against them. They have appealed to this court.

Parties to the appeal have filed and exchanged briefs of arguments.

Formulated in appellant’s brief as having arisen for the determination of the appeal are the following two issues:

(1) Whether on the facts disclosed in the appellants’ statement of defence and counter-claim, appellant’s counter-affidavit to respondent’s summons for judgment, the court below was right in entering judgment in favour of the respondent and holding that the facts disclosed in the appellants’ statement of defence and counter-affidavit disclosed no good defence?

(2) Whether it was proper for the court below to fail to consider the appellants counter-claim in giving its ruling entering judgment for the respondent.

On the part of the respondent, the following two issues have been formulated:-

(1) Whether the lower court is right in entering judgment under Order 11 of High Court of Lagos State (Civil Procedure) Rules, 1994, in favour of the respondent herein having regard to all the papers filed in the case to wit the statement of claim, the affidavits in support of summons for judgment, statement of defence and counter-affidavit filed by the appellant together with all the exhibits annexed to the processes filed by the parties.

(2) Whether the lower court is right in holding that the counter-claim filed by the appellant ought and should not affect the determination of an application for the judgment under Order 11 of High Court of Lagos State Civil Procedure Rules, 1994.

In arguing the appeal, appellants contend that they have disclosed triable issues both in their statement of defence and counter-affidavit to entitle them leave of the court to defend their action. Order 11 of the lower court’s rule of procedure is not designed to shut the defendant who has manifested in the two documents that he has a defence on the merit. Amongst the many judicial authorities relied upon by the appellants are: Macaulay v. NAL Merchant Bank (1990) 4 NWLR (Pt.144) 283; Okambah v. Sule (1990) 7 NWLR (Pt.160) 1; UTC v. Pamotei (1989) 2 NWLR (Pt.103) 244; FSB International Bank Ltd. v. Imano Nigeria Ltd. (2000) 11 NWLR (Pt.679) 620, (2000) 7 SC (Pt. 1) 1.

Further arguing the issue, paragraphs 6, 7 and 10 of the statement of defence and paragraphs 7 and 8 of appellants counter-affidavit have been cited to build a defence that the amount claimed by the respondent was not owed by the 1st appellant whose account was wrongly debited to the tune of N22.305,054.00. Besides, the guarantee relied upon by the respondent had long been discharged as same was in respect of an earlier transaction. All these had raised “triable issues” which the court needed to investigate in a full trial.

Interest in excess of the stipulated ceiling had also been charged. With these substantial issues raised, a complication had arisen necessitating a hearing. Conflicts also existed between the averments in the affidavits for or against the application for summary judgment. Only oral evidence would, on the authority of Falobi v. Falobi (1976) 9-10 SC 1 resolve such conflict.