When Leave to Defend Should be Granted and a Suit Transferred to the General Cause List

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CASE TITLE: OYERINDE v. FATOGUN (2022) LPELR-58916(CA)

JUDGMENT DATE: 21ST NOVEMBER, 2022

PRACTICE AREA: PRACTICE AND PROCEDURE

LEAD JUDGMENT: MOHAMMED BABA IDRIS, J.C.A. 

SUMMARY OF JUDGMENT: 

INTRODUCTION:

This appeal borders on summary judgment procedure.

FACTS:

This appeal is against the decision of the High Court of Kaduna State.

By a Writ of Summons dated the 18th day of November, 2019, the Respondent as Plaintiff in the Court below claimed against the Appellant as Defendant/Counter-Claimant as follows inter-alia:

1. The sum of N5,000,000.00 (Five Million Naira) being the total loan sum remaining unpaid by the Defendant to the Plaintiff.

2. The sum of N500,000.00 (Five Hundred Thousand Naira) expenses incurred by the Plaintiff in prosecuting this suit.

3. 10% pre-judgment interest on the sum of N5,000,000 monthly from the 28th day of FEBRUARY, 2018 TILL THE DATE OF Judgment.

​It is the claim of the Respondent at the trial Court that sometime on the 1st day of February, 2018, the Appellant approached him for a friendly loan of N5,500,000.00 (Five Million, Five Hundred Thousand Naira only) to execute an urgent business which he later granted him on a promise that the Appellant would pay back on or before the 28th day of February, 2018 and a loan agreement was executed between them in the presence of witnesses, and also as further security and assurance of the Appellant’s readiness to pay, the Appellant issued the Respondent a Stanbic IBTC Bank Cheque No. 23439273 post-dated to the 28th day of February, 2018 in the sum of N5,500,000.

The Respondent also claimed that when the Appellant failed to repay the said loan as promised, he presented the cheque to the Appellant’s bankers, Zenith Bank for payment but the cheque was returned unpaid for insufficient funds in the Appellant’s bank account and the Respondent was issued a debit advice dated the 27th day of August, 2018 by his Bank, Zenith Bank.

It is also the claim of the Respondent that the Appellant was later only able to pay the sum of N500,000 (Five Hundred Thousand Naira leaving a balance of N5,000,000 (Five Million Naira) despite repeated demands.

​On the 3rd day of November, 2021, the Respondent applied to the Court through a motion dated the 18th day of November, 2019 for summary judgment. The Appellant’s Counsel on the other hand filed his statement of defence and a written address in opposition to the Respondent’s application for summary judgment dated the 10th day of November, 2020 which was adopted. Upon hearing the application of Counsel, the Court adjourned the matter to the 26th November, 2021 for ruling.

The ruling in the Suit No: KDH/KAD/1009/2019 was delivered on the 26th day of November, 2021 by Honourable Justice B. Mohammed who found the case as one that can be determined summarily and after a summary determination, the Court gave judgment in favour of the Respondent.

Dissatisfied with the judgment of the High Court, the Appellant appealed to the Court of Appeal.

ISSUES:

The Court of Appeal determined the appeal by adopting the lone issue viz:

“Whether lower Court was right to deny Appellant leave to defend at trial and whether learned trial judge was right on basis for so doing?”

DECISION/HELD:

In conclusion, the Court of Appeal allowed the appeal. The Court of Appeal also ordered for the matter to be transferred back to the High Court of Kaduna State for hearing of the case on its merits.

RATIOS:

  • PRACTICE AND PROCEDURE – SUMMARY JUDGMENT PROCEDURE – The procedure for summary judgment; respective roles of the claimant, defendant and the Court therein
  • PRACTICE AND PROCEDURE – SUMMARY JUDGMENT PROCEDURE – Conditions to be satisfied for leave to be granted to a defendant to defend an action under the Summary Judgment Procedure
  • PRACTICE AND PROCEDURE – SUMMARY JUDGMENT PROCEDURE – What the Court must consider at the hearing of a motion for summary judgment
  • PRACTICE AND PROCEDURE – SUMMARY JUDGMENT PROCEDURE – Instance where a court ought to have granted a defendant leave to defend a suit in the general cause list rather than proceeding on the summary judgment procedure
  • WORDS AND PHRASES – “LIQUIDATED MONEY DEMAND” “LIQUIDATED SUM” – Definition of the term “liquidated money demand or liquidated sum” 

lawpavilion • November 30, 2022


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