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In The Supreme Court of Nigeria On Friday, the 29th day of June 1990
Before
Their Lordships
SC 186/1986
Between
And
Judgement
of the Court Delivered by Agbaje. J.S.C.
The plaintiff's Bank, NAL Merchant Bank Ltd., sued the defendant, Mr. A. A. Macaulay in a Lagos High Court claiming against him as follows: The
plaintiff's claim against the defendant is for the sum of N3,490.95 (Ninety
three thousand, four hundred and ninety naira, ninety-five kobo) being the
amount due and payable by the defendant to the plaintiff as at 30th September,
1984 for money lent in form of a term loan to the defendant at the defendant's
request in the normal course of plaintiff's business as a banker together with
interest and the usual bank charges thereon,
which sum defendant has refused and neglected to pay A in spite of repeated
demands. AND
THE PLAINTIFF ALSO claims interest on the said sum of N3 ,490.95 at the rate of 91/2%
per annum from 1St October, 1984 until judgment and thereafter at the
rate of 91/2% per annum until final liquidation of the whole debt together with
costs. The
writ of summons containing the claim, dated 21/11/84 and a statement of claim
dated 21/11/84 were filed together in the Lagos High Court Registry on this same
day. Both were served upon the defendant. Upon
the failure of the defendant, within the time prescribed by law, to enter an
appearance to the writ of summons or file a statement of defence to the
plaintiff's statement of claim, the plaintiff by motion on notice under
Order 9 Rule 3 and Order 24 Rule 2 of the High Court of Lagos State Rules of
Court and the Court's Inherent Jurisdiction, applied to court for the following
relief:- An
order entering final judgment for the plaintiff in the amount claimed in the
plaintiff writ of summons and Statement of Claim together with interest as
claimed upon default of appearance and or defence. The
application came on for hearing before Adeniji. J.. on 25/4/85. on that day,
counsel for defendant sought and was granted an adjournment for him to
regularise the defendant's position. Nothing significant happened in the case
until l/7/85 when the following occurred in court before Adeniji, J:- PARTIES. Absent. Bayo
Adeniji - Fashola for Plaintiff/Applicant. Mr.
Joseph for Defendant. Case
Adjourned. 8/7/85 to enable defendant file Statement of
Defence
before then, with N200 costs to plaintiff/applicant. Costs
to be paid on or before 8/7/85. Pursuant
to the above order of Adeniji. J. 1/7/85. the defendant filed a statement of
defence dated 4/7/85 to the plaintiff's statement of claim. It appears
therefore quite clear that the statement of defence was filed regularly. For
reasons hereinafter appearing I have to reproduce the whole of the statement of
defence:- STATEMENT OF DEFENCE SAVE AND EXCEPT as herein specifically admitted, the defendant denies each and every allegation of facts contained in the plaintiff's Statement of Claim if each were set out seriatim and specifically traversed the same. 1.
The defendant admits paragraphs 1,2.3,4 and 7 of the plaintiff's Statement of
Claim.
2.
The defendant denies paragraph 5, 6, 8. u and lo ~ the H plaintiff's Statement
of Claim.
3.
The defendant shall at the trial of this action rely on the agreement between
the parties herein as contained in the Letter dated 25th April, 1980 and
hereby gives the plaintiff notice to produce same.
4.
The defendant avers that pursuant to the aforesaid letter/agreement, the
defendant appointed Messrs. Mcgregor and Ojutalayo, Chartered Surveyors and
Valuers as his agents.
5.
Furthermore by a letter dated 6th May, 1980 the defendant's aforesaid agents
with the defendant's full knowledge and consent duly noticed the plaintiff of
their position and the defendant hereby gives notice to the plaintiff to produce
the said letter.
6.
The defendant denies the receipt of any debit or revision letter whatsoever from
the plaintiff and or its solicitors.
7.
The defendant shall at the trial of this action contend that the plaintiff
action herein is premature. WHEREOF
of defendant denies the plaintiff's claim of N93,490.95k or at all as same is
not due to the plaintiff. It
was after this regular statement of defence had been filed by the defendant
that the plaintiff/bank by summons on notice applied to the court under
order 10 Rules 1 & 2 of the Lagos State High Court Rules for the following
relief: Entering judgment against the defendant for the sum of N93,490.95 (Ninety-three thousand, four hundred and ninety naira, ninety five kobo) together with interest at the rate of 91/2 per annum from 1st October, 1984 until judgment and thereafter at the rate of 91/2 per annum until final liquidation of the whole debt together with costs. Order
10 rules 1 & 2 provide as follows:-
1.
(a) Where the defendant appears to a writ of summons specially indorsed with
or accompanied by a statement of claim under Order 3, rule 4, the plaintiff may
on affidavit made by himself or by any other person who can swear positively to
the facts, verifying the cause of action and the amount (b)
If
on the hearing of any application under this rule it shall appear that any claim
which could not have been specially indorsed under Order 3, rule 4, has been
included in the indorsement on the writ, the Judge may, if he shall think fit,
forthwith amend the indorsement by striking out such A claim, or may deal with
the claim specially indorsed as if no other claim had been included in the
indorsement, and allow the action to proceed as respects the residue of the
claim. (c)
Where
the plaintiff's claim is for the delivery up of a specific chattel (with or
without a claim for the hire thereof or for damages for its detention) the
Judge may make an order for the delivery up of the chattel without giving the
defendant any option of retaining the same upon paying the assessed value
thereof, and such order if not obeyed may be endorsed by a writ of attachment
or a writ of delivery. 2. The application by the plaintiff for leave to enter final judgment under rule 1, of this Order shall be made by summons returnable in Chambers not less than four clear days after service. accompanied by a copy of the affidavit and exhibits referred to therein. The
affidavit in support of the summons read thus:
AFFIDAVIT IN SUPPORT OF SUMMONS
I,
Kolade Ajayi, Nigerian Bank Officer, now residing at Block7, House 14 Satellite
town, Lagos hereby make oath and say as follows: 1.
That
I am an officer in the Credit Department of the Plaintiff Company.
2.
That
I am familiar with the facts of this case and I have the E
prior authority and consent of
the plaintiff to swear to this affidavit. 3.
That
the plaintiff's cause of action in this suit is as indorsed in the writ of
Summons and Statement of Claim herewith attached and marked Exhibit 'P1' 4.
That
sometime in April, 1980 the plaintiff granted to the F
defendant at the defendant's
request a term loan of ~7(),000.00 (Seventy thousand naira) under certain terms
and conditions as communicated to the defendant vide plaintiff's letter JAO/BEE/NAL
of 25/4/80, which terms were accepted by the defendant. 5.
That
the document now shown to me and marked Exhibit 'P2' is a photocopy of the
aforesaid letter showing the said G terms and conditions and which copy I
confirm as correct having compared it with the original in plaintiff's custody. 6.
That
under the terms and conditions governing the loan and accepted by the defendant
the defendant was required by paragraph 5 of the same to repay the loan in full
within H four (4) years from either
a.
rental
income on the bungalows estimated at N12,000.00 (twelve thousand naira) per
annum on i.e. N24,000.00 (twenty-four thousand naira) per annum or/and
b.
any
other sources. 7.
That
the defendant made full use of the loan granted as aforesaid and as at 30/8/84,
his loan account with the reflected a debit in the sum of N93,490.95 (Ninety- three thousand, four hundred & ninety
naira ninety-five kobo). 8.
The
defendant has not in spite of repeated demands paid back the said sum upon which
interest at the rate of 91/2% continues to accrue. 9.
That
the attached and marked Exhibit 'P3' are some of the plaintiff's several letters
of demand to the defendant which were never responded to. 10.
That
I am informed by Mr. Kola Awodein who is the counsel conducting this suit on
plaintiff's behalf and I verily believe him that the defendant duly entered an
appearance to this suit through his solicitors Messrs Akin 0. Sikuade & Co.,
and also filed a Statement of Defence on 8/7/85. 11.
That
the document now shown to me and marked Exhibit 'P4' is a copy of the
defendant's Statement of Defence. 12.
That
I am informed by Mr. Kola Awodein of counsel and I
verily believe him that the Statement of Defence discloses no defence
whatsoever to the plaintiff's claim. 13.
That
the document now shown to me and marked Exhibit 'P5' is a photocopy of the
letter referred to in paragraphs of the Statement of Defence and which copy I
confirm as correct having examined it with the original in the custody of the
plaintiff. 14.
That
the document now shown to me and marked Exhibit 'P6' is a copy of the Statement
of Account of the defendant with the plaintiff/applicant which statement has
been duly certified by me after examining same with the original entries in
the book in the custody of the plaintiff/applicant and having found the same to
be true and correct. 15.
That
the books are those kept by the plaintiff/applicant in the ordinary course of
its business and that the entries thereon are those made in the ordinary course
of plaintiff's business. 16.
That
the defendant has no defence whatsoever to this claim. 17. That I swear to this affidavit in good faith. The
defendant then filed an affidavit showing cause why he should be let in to
defend the action. The affidavit read thus:- 1.
That
I am the above named defendant. 2.
That
I have been shown a copy of the affidavit of Kolade Ajayi deposed to on the 18th
day of October, 1985. 3.
That
paragraphs 4 and 5 of the said affidavits are true. 4.
That
I intend to reply on the letter dated 25th April, 1980 referred to in
paragraph 5 of the said affidavit. 5.
That
it was mutually agreed between the plaintiff and myself that time is not the
essence of the agreement.
6.
That
in furtherance of the agreement my sole letting agents caused Exhibit ‘P5'
referred to in paragraph 13 to be written to the plaintiff. 7.
That I am made to understand by the plaintiff before agreeing with same that the
sum ofN70,000 is to be repaid to the plaintiff within 4 years of completing the
bungalows and tenanting. 8.
That
it was the averments in paragraph contained in paragraphs 4, 5, 6 and 7 above
that lured me on to accepting the loan. 9.
That
I have repeatedly informed the plaintiff of the state of the bungalows same
being uncompleted yet. 10.
That
the sum of 70,()0O or at all is not due to the plaintiff. 11.
That
the plaintiff's claim and application before this court is an abuse of the
process of this court. 12.
That
I at no time received any advice or notification from the plaintiff. 13.
That
I intend to defend the plaintiff's claim upon the foregoing depositions. 14. That I swear to this affidavit conscientiously. Adeniji,
J. heard the arguments on the application for summary judgment. Giving his
ruling on it on 29/11/85 he held
as follows:- ....Since the facts and particulars here show that this is a fair dispute as to the meaning of the loan terms and questions of facts may arise I think it is right in the circumstances to grant the defendant leave to defend this suit. And
he accordingly ordered as follows:- Leave is hereby granted to the defendant to defend the action, and the Statement of Defence already filed deemed to have been properly filed in the circumstances. The parties are accordingly directed to take out summons for directions. The
plaintiff bank appealed against this ruling to the Court of Appeal, Lagos
Division, which in its judgment in the appeal as per the lead judgment F
of Uthman Mohammed, J.C.A., in
which Nnaemeka-Agu, J.C.A., as he then was, and Kutigi, J.C.A. concurred
delivered on 21/7/86 held as follows:- first: In April, 1980, the appellant, on an application by the respondent granted the latter a loan of N70,000.00 with interest at 61/2 percent. The respondent accepted and signed the agreement on the terms and conditions specified therein. By the end of four years, after signing the agreement, the Loan Account of the respondent had gone up to N93,490.95. One of the conditions of offering the lo~n was that it would be repaid, with interest, within four years of the signature of the agreement. Second: lt is without any doubt that the respondent has not raised any defence in both the statement of defence and the affidavit filed by him in this appeal………………and I am in agreement with the submission of Mr. Awodein that the appellant is entitled to summary judgment on the claim filed before the High Court…………………........................................................................ The
appeal therefore succeeds and it is allowed. The ruling of Adeniji, J., delivered on 29th November, 1985, is set aside. In its place, as applied for in the writ of summons, judgment is hereby entered in favour of the appellant and against the respondent, in the sum of N93,490.95 The respondent shall also pay all the accumulated interests at the rate of 91/2 percent per annum, from the 1st October, 1984 to date. In addition the judgment debt shall yield interest at the rate of 41/2% until the final liquidation of the total debt. I assess costs in favour of the appellant at N50.00 in this court and Nl50.00 at the court below. It
is against this judgment that the defendant has now appealed to this Briefs of
argument were filed and served on both sides. According to the
defendant/appellant the issues arising for determination in this appeal are
as follows: 1.
Whether
or not from the State of the pleadings the main issue joined between the parties
turns on the construction of the terms and conditions of the agreement between
the parties. 2.
Whether
or not the finding of the learned trial Judge that the appellant made out a
prima facie case which ought to be tried being a finding of fact based on the
totality of the evidence before the court ought to have been disturbed by the
Court of Appeal. 3.
Whether
or not Order 10 Rules 1 and 2 procedure is appropriate in the circumstance of
this case particularly in construing and NOT inspecting document to wit the
terms and conditions of the agreement without the assistance of the arguments of
both counsel and purely on affidavit evidence. 4.
Whether
or not the parties from the materials before the court agreed “That the loan
would be repaid, with interest, within four years of the signature of the
agreement", and if so whose signature? The
main thrust of the submissions of counsel for the defendant/appellant Mr. C.O.
Joseph on all the issues said to arise in this case is that the resolution of
the dispute between the parties to this case turns on the construction of the
loan agreement. And, this being so counsel submits this case is not a proper
subject-matter for the proceedings for summary judgment under Order 10 rule 1 of
the Lagos State High Court Civil Procedure Rules. For this proposition counsel
relies on the following authorities: Bowes v. Caustic Soda and Chlorine Syndicated (1982-93) 9 T. 328; Jacobs v. Booth's Distillery Company 85 L.T. 212 H.L. The Law Vol. LXXXV Page 262. Saw v. Khakim Lindsay V. Martin (1888-89) 5 T. L. R. 323 The Electric and General Contract Corporation V. Thomson - Houston Electric Company (1893-94) T.L.R. 103 Ford V. Harvey and other (1892-93) 9 T.L.R. 328. Counsel
for the defendant further makes the point that the Court of Appeal erred when
it held:
One of the conditions of offering the loan was that it would be repaid, with interest, within four years of the signature of the agreement. According
to the brief of arguments of the plaintiff's respondent the issues arising for
determination in this appeal are as follows: (a)
Whether
the Court of Appeal was right in holding that the appellant had no arguable
defence to the claim and in entering judgment for the respondent accordingly. (b)
Whether
the Court of Appeal was right in examining and construing the relevant
documents in evidence in its determination of the case. (c)
Whether
a proper application of the relevant provisions of the said Order 10 precludes
in all events an examination and construction of relevant documents produced in
evidence. These
issues are, in my view, vitiations of the issues said by the defendant to p
arise for determination in this
appeal which together boil down to the point whether or not the defendant should
be let in to defend the action. And the submission in this regard of counsel for
the plaintiff, Mr. Kola Awodein, is that on the whole of the material in this
case there is no issue or question in which it ought rightly to be allowed to go
to actual trial. In effect, counsel has submitted that the defendant has not
raised either in his statement of de- F fence or in the affidavit showing cause
against the application any triable issue. He places reliance on the following
cases: 1.
Verrall v. Great Yarmouth BC
(1980)1 All E.R. 839 at 843,. 2.
European
Assian Bank V Punjab and Sind Bank (1983)
2 All E.R. 508 at 516; 3.
Nishizawa
Ltd. V. S.N. Jethwani
(1984)12 S.C. 234 at 276-7; and 4.
VanLynn
Developments Ltd. V Pelias Construction Co. Ltd.
(1968)3 All E.R. 824 at 825. The
provisions of Order 10 rules (1) and (2) were considered in depth in the case of
Nishizawa Ltd. v. S.N. Jethwani
(1984)12 S.C. 234 by this court. It will be a work of super-ero-gation if
I were to undertake to examine the provisions afresh and construe them. I think
it is enough for me if I apply the decisions in the case to the case in hand or
state my reasons why a particular decision in the case will not apply here. It
is to be noted as I have said earlier on in this judgment the defendant's
statement of defence to the plaintiff's statement of claim was filed regularly.
So an important feature of this case is that there was a regular statement of
defence in existence before the plaintiff applied for summary judgment under
Order 10 rule 1. In Nishizawa Ltd. V.
Jethwani Ltd. (supra) this
court H was confronted with a situation where a statement of defence was filed
after an application for summary judgment was made but before leave to defend
the action was given to the defendant by court. It was in this context that the
relevance of the statement of defence filed was pronounced upon in the consideration
of the point whether or not the defendant in the case should have been let in to
defend. In
Nishizawa Ltd. V. Jethwani,
(supra) it was remarked as per the lead judgment of Obaseki, J.S.C., that
the English case of Mclardy V. Slateum (1890)
24 Q.B.D. 504 is: ….no authority for the statement that "the fact that he has delivered a defence may be sufficient to enable a defendant to get leave to defend" but only an authority for the proposition that "the plaintiff's application for judgment may be made even after the delivery of a statement of a defence. I
consider the decision in the case of Mclardy V. Slateum (supra)
very much relevant to the case in hand. So it behoves me to set down the
decision in the case at page 506 of
the report by Pollock, B.:- This
is an appeal from an order of Field, J., at chambers, setting aside an order of
a master, who, upon an application under Order XIV., had given the defendant
leave to defend upon paying the amount of the claim into court. The
order of Field, J., proceeded upon his view of the proper construction of Order
XIV. , r.1, namely, that the plaintiff was bound to make his application for
summary judgment before the defendant had put in any statement of defence. We
took time to consider our judgment, principally because we were desirous of
ascertaining what was the practice followed by other Judges, and by the masters,
in consequence of being informed by counsel that Field, J., had long ago
decided, in an unreported case, that the
application must be refused if made after delivery of a statement of defence. We
have made those inquiries, and learnt that the view of Field, J., still is that
the intention of Order XIV was that the plaintiff must make his application
before delivery of a statement of defence; but that in peculiar circumstances it
may be made after, as where the defendant has delivered his defence before the
expiration of the usual time, for the very purpose of defeating such an
application. The view taken by other Judges, and by the masters, is that the
intention of Order XIV., r.1, was that the plaintiff should apply within a
reasonable time after the appearance of the defendant, but that it very often
happens that a defence, which has been delivered, itself discloses facts which
make an application under Order XIV right and proper. We think that this is the
proper construction of the rule. (Italics mine)
As
I have said earlier on in this judgment the statement of defence in the instant
case was filed regularly. It appears from the decision in Mclardy
v. Slateum (supra) that before that case the view was that upon a proper
constructionoforderXl Rule 21 (U.K. Rules of Court) which as I have said is
in pari
materia with Order 10 rule 1
of the Lagos High Court Civil Procedure Rules the plaintiff was bound to make
his application for summary judgment before the defendant had put in any
statement of defence. My understanding of the decision in Mclardy v. Slateum is
that that case has not swept away that view. What it has done, in my view, is
that it recognises an exception to that view, namely, when it happens that a
defence, which has been delivered, itself discloses facts which make an
application for summary judgment right and proper. It appears to me that when
an application for summary judgment is made under these circumstances, one must
perforce have recourse in the first instant to the statement of defence
delivered in the consideration of the point whether or not to grant the
application. If the statement of defence in fact shows a triable issue, then the
application will be refused. If it does not, then recourse will be had to the
affidavit of the defendant showing cause to the application with a view to
finding out if the defendant, in the language of Order 10 rule 1(a) of the
High Court of Lagos State Rules has satisfied the Judge that he has a good
defence to the action on the merits or that he, the defendant, has disclosed
such facts as may be declared sufficient to entitle him to defend the action
generally. On
all the matters which the trial Judge has to consider before coming to his
decision as to whether or not to make an order empowering the plaintiff to
enter summary judgment against the defendant, the trial Judge is not without
guidance. In Nishizawa Ltd. v. Jethwani
(supra) at page 260 this court quoted with approval Notes 14/3 - 4/4 to
Order 014 r.3 of the English Rules on Summary Judgment in the Supreme Court
Practice 1976 as guidance to a court dealing with a matter of this nature:- The
defendant's affidavit must "condescend upon particulars", and should, as far
as possible, deal specifically with the plaintiff’s claim and affidavit, and
state clearly and concisely what the defence is, and what facts are relied on
as supporting it. It should also state whether the defence goes to the whole or
part of the
claim, and in the latter case it
should specify the part. A
mere general denial that the defendant is indebted will not suffice (Wallingford
V. Mutual Society (1880) 5
App. Cas., per Lord Blackburn, at p.704; Re General Rail Syndicate, Whiteley's
Case, (1900)1 Ch., per Lindley, M.R., at p.369 Anon., (1875) WN 249, per Quain,
J., at p.250) unless the grounds on which the defendant relies as showing that
he is not indebted are stated (ibid.). If the affidavit commences, as it may,
with a statement that the defendant is not indebted to the plaintiff in the
amount claimed, or any part thereof, it should proceed to state why the
defendant is not so indebted, and to state the real nature of the defence relied
on (Re General Rail, Syndicate, G supra). Again,
it is not enough for the defendant to show a case of hardship but creating no
enforceable right, e.g., past promise by plaintiff unsupported by valuable
consideration (Woolston
V. Baines, (1876) W.R. 74),
nor a mere inability to pay (Besant V.
Townsend, 22 L.R. Ir. 389),
nor an allegation that the plaintiff H has given time for payment which, of
course, constitutes no defence unless there be consideration (Hookham V.
Nayer
(1905), 22 T.L.R. 241). If
the defence relied on is fraud the affidavit should state the particulars of the
fraud (Wallingford
V. Mutual Society (1880) 5
App. Cas. 685). A mere vague
general allegation of fraud is useless (ibid). Similarly,
if a legal objection is raised, the facts and the point of law arising thereon
must be clearly stated. Indeed,
in all cases, suffident facts and particulars must be given to show that there
is a bona fide defence (Wallingford V. Mutual Society (1880), 5 App. Cas.
685, see judgment of Lord Blackburn at p.704; Harrison v. Bottenheim, 26W. R. 362; Ray V.
Barker, 4 Ex. D. 283; Shurmur V. Young (1889), 5 T.L.R. 155). Matter
of hearsay is admissible in the defendant's affidavit (Harrison V.
Bottenheim (1878), 26 W.R. 362, C.A.), provided that The defendant's affidavit is not conclusive and does not preclude him from relying on defences not raised in it (Ray V. Newton, (1913)1 K.B., per Hamilton, L.J. at p.258). The
case of Jacob's v. Booth's Distillery
Company (1901-2) Volume 85
N.S. The Law Times Report 262 is authority for the proposition that judgment
should only be ordered under Order XIV (U.K. Rules) dealing with summary
judgment where assuming all the facts in favour of the defendant they do not
amount to a defence in law. The same case also decides it that where there is a
triable issue, though it may appear that the defence is not The
case of the Electric and General Contract
Corporation V. The Thomson - Houston Electric Company
1893 - 94 Vol. X The Time Law Report 103 is authority for the proposition
that Order XIV (U.K. Rules) providing for summary judgment does not apply to
cases raising what may turn out to be difficult question of law. The case of Ford
V. Harvey & anor. 1892-95
9 T.L.R. 328 is authority for the proposition that Order XIV (U.K. Rules) which
allows summary judgment to be entered is not intended to apply to cases in which
there is a fair dispute as to the meaning of a document. In
the dealing with an application for summary judgment under the relevant rule
of court the following passage in the speech of the Lord Chancellor (Halsburys)
in Jacobs V. Booth's Distillery Company
(supra) is worthy of note:- The
Lord Chancellor said 'People do not seem to understand that the effect of order
XIV is, that, upon the allegation of the one side or the other a man is not to
be permitted to defend himself in a court; that his right are not to be
litigated at all. There are some things too plain for argument; and where there
were pleas put in simply for the purpose of delay, which only added to the
expense, and where it was not in aid of justice that such things should
continue, Order XIV was intended to put an end to that
state of things, and to prevent sham defences from defeating the right of
parties by delay and at the same time causing great loss to plaintiffs who were
endeavouring to enforce their rights. I
can now go on to the consideration of the arguments from both counsel in this
court. I have set down earlier on in this judgment the Statement of Defence of
the defendant and his affidavit showing cause against the application for
summary judgment. I have set down the statement of claim of the plaintiff/bank. By
paragraph 1 of the statement of defence, the defendant admits paragraphs 1, 2,
3, 4 and 7 of the statement of claim. In effect, the defendant admits the
following averments in the plaintiff's statement of claim: 3.
Sometime
in April, 1980, the plaintiff at the specific request of the defendant granted
to the Defendant term loan of N70,000 (Seventy Thousand Naira) under certain
terms and conditions which terms and conditions were accepted by the Defendant.
The Plaintiff will rely on its letter dated 25/4/80
by which the loan was granted and the Defendant's signature thereon
signifying his acceptance of the terms and conditions stated therein.
4. The Plaintiff avers that the Defendant made full use of the loan granted as aforesaid and that as at 30th September, 1984, the Defendant's loan Account reflected a huge outstanding sum of (N93,490.95) Ninety-three thousand, four hundred and ninety naira, ninety-five kobo). On
the authority of Seldon v. Davidson
(1968) 2 All E.R. 755 it is clear that
once the defendant admits the receipt of the loan the burden of proof as to
repayment or as to the reasons for non repayment is on the defendant. The only
thing in respect of the latter is paragraph 7 of the statement of defence
which says: 7. The defendant shall at the trial of this action contend that the plaintiff action herein is premature. Paragraph
7 of the statement of defence contains no facts and particulars indicating
that the plaintiff's action is premature. So on such authorities as Willingford
V. Mutual Society (supra) Harmson V. Buthenliejin (supra)
Ray V. Baker
(supra) and Sharmier
V. Young (supra) such a defence will not De countenanced in an
application for summary judgment. So in my judgment the plaintiff was in order
on the authorities in applying for summary judgment after the defence has been
filed. For the defence shows facts which made such an application necessary and
proper. And in my judgment the defence does not raise a triable issue. This
is not the end of the matter. I have said that the defendant in addition to
his statement of defence has filed pursuant to Order 10 rule 3 an affidavit
showing cause against the application for summary judgment. It therefore behoves
me to see if the lower court, guided by the relevant authorities ought to have
been satisfied as the trial court was, that the defendant has a good defence
to the action on the merits or that the defendant has disclosed such facts as
may be deemed sufficient to entitle him to defend the action generally. I
have set down earlier on in this judgment the affidavit of the defendant. By
paragraph 3 of the affidavit he admits paragraphs 4 and 5 of the affidavit in
support of the application for summary judgment which say:- 4.
That
sometime in April, 1980 the Plaintiff granted to the Defendant at the
Defendant's request a term loan of N70,000.00 (Se
venty thousand naira) under certain terms and conditions as communicated
to the Defendant vide Plaintiffs letter JAO/BEE.NAL of 25/4/80, which terms were
accepted by the Defendant. 5. That the document now shown to me and marked Exhibit 'P2' is a photocopy of the aforesaid letter showing the said terms and conditions and which copy I confirm as correct having compared it with the original in plaintiff's custody. The
effect of this admission is that both parties to this case are agreed that the
terms and conditions of the loan which the plaintiff undoubtedly granted the
defendant are contained in the plaintiffs letter to the defendant reference
No.JAO/BEE.NAL of 25/4/80 a copy
of which is Exh.P2 exhibited in this application. Exhibit
P2 reads thus:-
Dear
Sir, TERM
LOAN FACILITY With
reference to your applications of 9th April and 7th May, 1979, and further to
our subsequent discussions, we are pleased to offer you a term loan of
N70,000.00 (Seventy thousand Naira) subject to the following terms and
conditions:- 1.
AMOUNT:
The maximum amount that may be drawn under this facility is
N70,000.00 (Seventy thousand Naira only). 2.
PURPOSE:
To provide you with part of the finance required for the completion
of your two bungalows under construction at Ogba Residential estate costing
N113,000.00. |