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.
- 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.
- 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 …. ”
I agree with both courts. For a matter to be transferred from undefended list to the general cause list, the affidavit in support of notice of intention to defend must show or disclose enough facts to satisfy a reasonable tribunal that the defendant has a defense to the action. Such a fact must be one that will require the plaintiff to proffer explanation for certain matters with regard to his claim or which seriously questions the plaintiff’s claim. Such a defense must not be a sham, frivolous, vague or fanciful or designed to delay the trial of the action. It must show that there is a dispute between the contending parties to be tried. That is the tenor of Order 22 rule 3(1) of the Kaduna State High Court (Civil Procedure) Rules, 1987 which provides as follows:
“If a party served with the writ of summons and affidavit as in Rules 1 and 2 hereof delivers to the Registrar not less than 5 days before the date fixed for hearing a notice in writing that he intends to defend the suit together with an affidavit disclosing a DEFENSE on the MERIT the court may give him leave to defend upon such terms as the court may think just.” (emphasis and italics provided by me).
Some of the averments made by one Ibrahim Umar, a litigation officer in the law firm of learned counsel for the defendants stated as follows:
“3(b) That the 1st defendant granted an import finance facility to a certain Drury Industries Ltd to import Solar Urea Fertilizer. Drury Industries Ltd., failed to repay the debt despite several demands made by the 1st defendant who consequently, appointed Otunba Olutola Senbore as a Receiver/Manager over the assets of Drury Industries Ltd and serve its Sales Agent to dispose of the fertilizer pledged to the 1st defendant by Drury Industries Ltd.
(c) That the Receiver/Manager sold the entire stock of fertilizer to various individuals other than the plaintiff with the largest quantity of about 94 trucks being sold to Barmani Holdings Ltd for the total sum of N50,760,000.00.
(d) That when the plaintiff approached the 1st defendant in order to purchase fertilizer, he was informed by the second defendant that the remaining stock of fertilizer had been sold to Barmani Holdings Ltd and was advised by the 2nd defendant to contact Barmani Holdings Ltd if he wished to buy fertilizer.
(e) That thereafter, the defendants are aware that the plaintiff contacted Barmani Holdings Ltd and made arrangement for the purchase of some fertilizer.
(f) The defendants were aware of fact above because, on July, 1999, (sic) the plaintiff paid a U.B.A. draft in the sum of N4.2 million and an Afribank draft in the sum of N7.8 million through our Kaduna North branch to Barmani Holdings Ltd for the purchase of 20 trucks of Solar Urea Fertilizer.
(g) That the defendants are also aware, that the plaintiff only collected 9 trucks of fertilizer and that Barmani Holdings Ltd refunded to the plaintiff, the sum of N5 million for the balance of 11 trucks of fertilizer that was not supplied. Consequently, if there are any outstanding balance due to the plaintiff the defendants are not liable to pay as they were never part of the transactions between the plaintiff and Barmani Holdings Ltd the role of the defendants being simply that of Bankers or both parties in that transaction. Barmani Holding Ltd ought to account to the plaintiff for any such balance.”
Further, the 2nd defendant informed the deponent of the following facts:
4(b) “That paragraph 10 and 11 of the plaintiff’s affidavit are also untrue as the instruments made out by the plaintiff were not made payable to the defendant but to Barmani Holdings Ltd.
(c) That paragraphs 20 and 21 of the plaintiff’s affidavit are also not true. The 2nd defendant never undertook in any manner whatsoever to pay the plaintiff as neither the 1st defendant nor the 2nd defendant is indebted to the plaintiff.
(d) That paragraph 22 of the plaintiff’s affidavit is denied as it was not the 2nd defendant who was selling the fertilizer but the Receiver Manager and that the 2nd defendant is not aware of all the facts surrounding the transaction. A clearer picture of what transpired between the Receiver Manager and his customer is contained in a letter dated 31/8/99 written by the receiver manager to the 1st defendant in which he stated that the memo exhibit ABJ. 3 of the plaintiff does not reflect the true position of the transaction. The letter dated 31/8/99 shown to me is annexed herewith as exhibit FRI.
(e) That the defendant has a good defense to this action as they are not indebted to the plaintiff in any manner howsoever.” The learned trial Judge x-rayed the above depositions and made far reaching findings. For instance,paragraphs(d) to (f) are on issue of the actual person from whom the plaintiff purchased the fertilizers. The learned trial Judge held as follows:-
“I agree that exhibit ABJ 3 reads that the fertilizer was bought from defendants directly and that the plaintiff collected from the agents of defendant. I also agree that exhibit ABJ 1 and 2 attached to the plaintiff’s affidavit in support are admissions of liability by the defendants to the plaintiff. There is no doubt that plaintiff purchased from 1st defendant through their agents Barmani Holdings Ltd. ”
In paragraphs (b) and (c) the depositions were made in favour of the plaintiff as he was neither linked with the company known as Drury Industries Ltd nor with Barmani Holdings (Nig.) Ltd. This was further confirmed by exhibit FR1 which emanated from Otunba Olutola Senbore, who was shown in paragraph (6) to be a Receiver/Manager over the assets of Drury Industries Ltd and who served as sales agent to dispose of the fertilizer pledged to the 1st defendant by Drury Industries Ltd. This document (exhibit FR.1) was addressed to the Managing Director of the 1st appellant.
Let me observe here that the relationship that existed, if any, between the plaintiff and Drury Industries Ltd and Barmani Holdings (Nig.) Ltd. from the affidavit evidence considered by the learned trial Judge, is that as far as the plaintiff is concerned, both Drury Industries Ltd and Barmani Holdings (Nig.) Ltd. were third parties to the transaction between him and the defendants/appellants. The doctrine of privity of contract is all about the sanctity of contract between the parties to it. It does not extend to others from outside. The doctrine will not apply to a non-party to the contract who may have, unwittingly, been dragged into the contract with a view to becoming a shield or scape-goat against the non-performance by one of the parties. Barmani Holdings (Nig.) Ltd is a complete stranger in the contract between the appellants and the respondent. Barmani was never joined as a party as rightly observed by the court below. Court of law do not make orders in vain or in vacuum. Court orders affect directly, those persons who have had course to be subjected to the litigation process before the court either directly or by necessary extension of such processes. See: Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162; Ukejianya v Uchendu (1950) 13 WACA C 45; Kokoro-Owo v. Lagos State Government (2001) 11 NWLR (Pt. 723) 237 at page 246 D-E.
There is, certainly, a failure of and indeed non-performance by the appellants of their own part of the contract between them and the respondent.
In considering the averments in paragraphs (b) and (c) of the deponent as sourced from the 2nd defendant the learned trial Judge made the following finding: “The bank draft No. 288452/BO. 20/026676 and bank draft No. 020049/BO. 3500072 were given but copies of this bank draft (sic) were not attached as exhibits to help this court to examine them.” The court below gave strong legal backing, with which I agree, to the above holding of the trial court.
This is what the court below said:
“The burden of tendering the drafts whereby the money was paid was on them. Firstly they have to produce the drafts whereby the money was paid for the fertilizer or the refund was made otherwise, judgment would be given against them even if the matter were to be placed on the general cause list and the respondent failed, refused or neglected to produce the cheques as he would still not be saddled with the burden because they are the ones asserting the positive judgment being made to Barmani. The cheque issued by United Bank for Africa PLC, Funtua by banking practice in Nigeria is in the custody of the appellant who had asserted that the payment was made to Barmani Holdings. I take judicial notice that cheque drawn by a customer on his bank is kept or retained by his or its bank after clearance. The only cheque which would not probably be in the appellant’s custody, through the normal course of banking is the respondent’s second draft drawn on Afribank Malumfashi branch. Even that too must be produced in evidence by the appellant who had alleged that payment was made to Barmani Holdings Company Nigeria Limited and not to them to establish the assertion.”
The proposition of the law in such circumstances is that proof always lies on him who asserts, not upon him who denies. See: section 135 of the Evidence Act. Again, section 136 thereof states clearly that the burden of proof in a civil suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Thus, the argument put forward by the appellants that the drafts were not paid to them but to Barmani Holdings (Nig.) Ltd is plausible and porous. No reasonable court or tribunal will base its findings and decisions on such porous or rather non-existent evidence. Another factor which worked very strongly in favour of the respondent is the appellants’ admission through the second appellant who wrote exhibits ABJ 1 and ABJ 2 which, in my opinion, made it no longer necessary for the respondent to substantiate the averments contained in his affidavit in support of his writ of summons. The exhibits are recited severally hereunder. Exhibit ABJ 1 was written on the second appellant’s official headed note pad and reads thus:
“Alhaji Babangida Jargaba kindly give us one week in relation to the refund of fertilizer purchase from UBA PLC through Barmani Holdings regarding the balance of N1,960,000. 00. Signed 9/9/99.”
Precisely, a week later exhibit ABJ 2 was written to the respondent. It reads as follows:
“Alhaji Babangida Jargaba kindly give us a grace period of 15 days for your balance of N1,960,000.00 being payment routed for Barmani Holdings for purchase of Drury Fertilizer. Signed 16/9/99. ”
Exhibit ABJ 3 is a memorandum written jointly by the 2nd appellant and one Nasiru M. Abubakar, Head, Funds Transfer of the 1st appellant. It reads as follows:-
From: KADUNA NORTH BRANCH KDN/MST NMA1721199 TO: The Group Head
National Corporate Bank, Lagos. 18th August, 1999 DRURY SALES OF FERTILIZER
“We write to notify your good-selves that the following individuals/corporate bodies are yet to receive the balance of their fertilizer stock bought from us nor refund of funds collected by BARMANI HOLDINGS LIMITED through Kaduna North branch.
- Alh. Salisu & Sons N9,450,000.00
- Alh. Shulden Natatu/Alh. Nura N1,860,000.00
- Alh. Babanzida Jarzaba N1,960, 000. 00
- Alh. Sarki Zaria N1,260,000.00
Kindly expedite action in ensuring that these clients are refunded as some of them are planning a legal action against the company and our bank. We await your urgent response.
IBRAHIM EL-RUFAI NASIRU M. ABUBAKAR
BRANCH MANAGER HEAD, FUNDS TRANSFER
Cc: Alh. Suleiman Garba Nuru-CEO Barmani Holding Ltd
Cc: Otunba Olutola Senbore-The Receiver/Manager Drury Ind. Ltd.
When admissions are made they are considered relevant. Section 75 of the Evidence Act provides that no fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which, before the hearing they agree to admit by any writing under their hands or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings. See: Daniel v. lroeri (1985) 1 NWLR (Pt.3) 541.; Din v.African Newspapers (1990) 3 NWLR (Pt. 139) 392; Narindex Trust Ltd. v. N.I.M.B. Ltd. (2001) 10 NWLR (Pt. 721) 321. The 2nd appellant having admitted that the payment was made to the 1st appellant, there will no longer be a burden to prove what has been admitted by the appellants. See: Onobruchere & Anor. v. Esegine (1986) 1 NWLR (Pt.19) 799, (1986) 2 SC 385 at p. 397. The onus of proof now shifted on the appellants squarely to show that they had no obligation to pay the balance of the money owed by them. See: Seldon v. Davidson (1968) 1 WLR 1083.
Although the general approach of the courts is that some liberality should be brought to bear by trial courts while considering whether to grant leave to a defendant to defend an action filed against him, there has to be revealed, on the other hand, by the defendant in his affidavit in support of his notice of intention to defend, facts which will disclose the existence of triable issues. All that is required is that there should be some doubt in the mind of the trial court. See: Peat Marwick Ani, Ogunde & Co. v. Okike (1995) 1 NWLR (Pt.369) 71; Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt.144) 283; Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737; Nishizawa Ltd. v. Jethwani (1984) 12 SC 234.
The learned trial Judge in this case had no doubt in his mind in arriving at the inescapable conclusion that appellants’ affidavit in support of their intention to defend plaintiff/respondent’s action, disclosed no triable issues. ACB Ltd. v. Gwagwada (1994) 5 NWLR (Pt.342) 25, (1994) 4 SCNJ (Pt. 11) 267 at p. 277-278.Order 22 rule 3(1) of the Kaduna State High Court (Civil Procedure) Rules, is designed to relieve the courts of the rigour of pleadings and burden of hearing tedious evidence on sham defences mounted by defendants who have no defence and are just determined to dribble and cheat plaintiffs out of reliefs they are normally entitled to. See: Planwell Ltd v. Ogala (2003) 18 NWLR (Pt.852) 478, (2003) 12 SCNJ 58 at page 68. A summary judgment is a procedure for disposing with dispatch, cases which are virtually uncontested. It also applies to cases where there can be no reasonable doubt that a plaintiff is entitled to judgment and where it is inexpedient to allow a defendant to defend for mere purpose of delay. It is for the plain and straight forward, not for the devious and crafty. See: Sodipo v. Leminkainen (1986) 1 NWLR (Pt.15) 220; Adebisi MacgregorAss. Ltd. N.M.B. Ltd. (1996) 2 NWLR (Pt.43) 378, (1996) 2 SCNJ 72 at page 81.
On the issue of whether bare denial of liability amounts to a reasonable defence, a plethora of decided cases shows that a bare denial of liability or indebtedness to the plaintiff or vague allegation of fraud against him without more does not suffice for that purpose.
See: Sanusi Bros (Nig.) Ltd. v. Cotia Commecio Exp SA, (2001) 11 NWLR (Pt.679) 566, (2000) 6 SC (Pt. 3) 43 at page 53. I resolve the first issue in favour of the respondent. Appellants’ issue No.2 is on whether there was an admission of the respondent’s case. Learned counsel for the appellants contended that the courts below were wrong in holding that exhibits ABJ 1, 2 and 3 constituted an admission by the appellants of the respondent’s claim. An admission in law is referred to as a statement, oral or documentary which suggests any inference as to any fact in issue or relevant fact. See: section 19 of the Evidence Act. Section 20 of the same Act provides:
“20(1) Statements made by a party to the proceeding or by an agent to any such party, whom the
court regards, in the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions.” There is a finding by the trial court that Barmani Holdings (Nig.) Ltd and the 2nd appellant were agents to the 1st appellant.
Below is what the trial court said:- “I agree that exhibit ABJ 3 reads that the fertilizer was bought from defendants directly and that the plaintiff collected from the AGENTS of the defendant. I also agree that exhibit ABJ 1 and ABJ 2 attached to the plaintiffs affidavit in support are ADMISSIONS of liability by the defendants to the plaintiff. There is no doubt that plaintiff purchased from 1st defendant through their Agents BARMANI HOLDINGS LTD … The use of the word fertilizer where bought from the 1st ,2nd and even the AGENTS of the 1st defendant. Payment was made to the defendant. I see no how the 1st defendant and 2nd defendant who is also an AGENT of the 1st defendant can avoid liability.” (emphasis supplied by me).
I quoted exhibits ABJ 1, ABJ 2 and ABJ 3 earlier. I agree with the court below that the 2nd appellant, who was found by the trial court to be an agent to the appellants made admission through these exhibits that the money in question was collected through their bank i.e. 1st appellant. I agree with the learned counsel for the respondent as well, in his submission that the exhibits were made by the agents of the 1st appellant. The 2nd appellant was at all material times, the Branch Manager of Kaduna North Branch of the 1st appellant. The co-author of exhibit ABJ 3, was at all material times, the 1st appellant’s Head, Funds Transfer. These facts were never countered by the 1st appellant. It is the prevailing law that admissions where made freely and voluntarily, they are relevant and can be relied and acted upon by the court. I resolve issue No.2 in favour of the respondent. Finally, this appeal lacks merit and same is dismissed by me. The respondent is entitled to N10,000.00 (ten thousand naira) costs from the appellants.