FCMB v. J. A. ODUTOLA PROPERTY &INVESTMENT CO. LTD

CITATION: (2018) LPELR-45543(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON FRIDAY, 11TH MAY, 2018Suit No: CA/L/1088M/2013

Before Their Lordships:

TIJJANI ABUBAKAR Justice, Court of AppealBIOBELE ABRAHAM GEORGEWILL Justice, Court of AppealUGOCHUKWU ANTHONY OGAKWU Justice, Court of Appeal

BetweenFIRST CITY MONUMENT BANK PLC - Appellant(s)

AndJ. A. ODUTOLA PROPERTY &INVESTMENT COMPANY LIMITED - Respondent(s)

RATIO DECIDENDI

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1. APPEAL - INTERFERENCE WITH THE EXERCISE OF DISCRETION: Whether an appellate Court willinterfere with an exercise of discretion by a lower Court merely because it would have exercised its discretiondifferently if faced with the same facts"From the submissions of Counsel for the parties in this appeal, it is without doubt that both the Appellant andthe Respondent appreciate the settled position of the law that the grant or refusal of application is an exerciseof discretion of the trial Judge which cannot be interfered with by an appellate Court except in specialcircumstances, and such circumstances do not include that the appellate Court would have exercised suchdiscretion differently. See ANYAH Vs. AFRICAN NEWSPAPER OF NIG. LTD. [1992] NWLR (Pt.247) Pg. 319;(1992) LPELR-511 (SC) Pg.20-21, Paras. G - A where the Supreme Court held that:"It is not in all cases that an Appeal Court will interfere with the exercise of discretion by a trial Judge, simplybecause it did not favour one of the parties litigating before him. The Court will not interfere with the exerciseof discretion in the absence of proof that it was wrongly exercised. You cannot lay down hard and fast rules asto the exercise of judicial discretion by a Court for the moment you do that, the discretion is fettered."In OLATUBOSUN Vs. TEXACO NIG. PLC (2012) LPELR-7805 (SC) Pg. 18, Paras. C - D the Supreme Court ofNigeria held that"...an appellate Court like ours will not interfere with the exercise of discretion of the Court below merelybecause this Court would have acted differently. ...this Court will only interfere where the discretion exercisedis manifestly wrong, arbitrary, reckless and injudicious."Also, in FALEYE & ORS Vs. DADA & ORS (2016) LPELR-40297 (SC) Pg. 33-34, Paras. E - C, the Supreme Courtper MUHAMMAD JSC held as follows:"...This Court has stated it times without number that it is none of its functions or indeed that of an appellateCourt to substitute its own views of the evidence for those of the trial Court that is better placed to deal withthose matters. The appellate High Court could only have interfered with findings of facts of the trialCustomary Court when the findings are perverse and/or consequent upon improper exercise of judicialdiscretion further resulting in miscarriage of justice..."Per ABUBAKAR, J.C.A. (Pp. 16-18, Paras. E-C) - read incontext

2. JUSTICE - MISCARRIAGE OF JUSTICE: What amounts to miscarriage of justice"The Appellant did not contradict the Respondent's submission that Suit No: FHC/IKJ/CP/137/2012 wasdiscontinued by the Petitioners sometime in July, 2014. In the circumstances therefore, the Appellant hasfailed to establish that the Respondent concealed the existence of the Petition and Motion on Notice in SuitNo:FHC/IKJ/CP/137/2012 as alleged by the Appellant. The Appellant has equally not established that theabsence of the knowledge of the existence of the Petit ion and Motion on Notice in SuitNo:FHC/IKJ/CP/137/2012 led to or occasioned a miscarriage of justice. In the instant case, the existence orotherwise of a pending suit is not material to the determination of the Motion for Summary Judgment by theRespondent which the Appellant had filed a Counter-Affidavit and further Counter-Affidavit. See ADEBAYO Vs.A.G. OGUN STATE [2008] 7 NWLR (Pt.1055) 201; (2008) LPELR-80 (SC) Pg. 12, Paras. F - G; SAVANNAH BANKOF (NIG.) LTD Vs. STARITE IND. OVERSEAS CORPORATION [2009] 2-3 NWLR (Pt.1144) 491; (2009) LPELR-3020(SC) Pg.27, Paras. E - F; UBA PLC & ANOR Vs. UGOENYI & ANOR (2011) LPELR-5065 (CA) Pg.70, Paras. C - Eand UNILORIN Vs. AKINOLA (2014) LPELR-23275 (SC) Pg.36, Paras. E - G. In UBA PLC & ANOR Vs. UGOENYI &ANOR (Supra) this Court held that:"In law, 'a miscarriage of justice can only be said to present itself to a Court of law when that Court afterexamination of the entire case, including the evidence, is of the opinion that it is reasonably probable that aresult more favorable to the appealing party would have been reached in the absence of the error complainedof..."I hold the view that the Respondent in the instant case did not conceal the existence of the Petition and theMotion on Notice in Suit No: FHC/IKJ/CP/137/2012 or any other material fact sufficient to mislead the LowerCourt. I also hold the view that the existence or otherwise of Suit No: FHC/IKJ/CP/137/2012 is not material tothe determination of the Motion for Summary Judgment. This issue is therefore resolved in favour of theRespondent against the Appellant."Per ABUBAKAR, J.C.A. (Pp. 22-24, Paras. C-B) - read in context

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3. PRACTICE AND PROCEDURE - UNDEFENDED LIST PROCEDURE: Whether the decision to grant or not togrant leave to defend an action under the undefended list procedure is at the discretion of the Court"The relevant Rule of the Lower Court applicable at the time this suit was commenced is the High Court ofLagos State Civil Procedure Rules, 2012 and Order 11 (5) (1) & (2) the Rules provides clearly as follows:1. Where it appears to a judge that the Defendant has a good defense and ought to be permitted to defendthe claim he may be granted leave to defend the claim.2. Where it appears to a Judge that the Defendant has no good defense the Judge may thereupon enterjudgment for a Claimant."(Underlined by me)In UMECHE v. CITIBANK NIG LTD & ANOR (2013) LPELR-20722 (CA) Pg. 17, Paras. D - F, this Court held that:"...the essence of proceedings for summary judgment under Order 11 ...is to give judgment for admittedclaims or claims that are not met with a viable or arguable defense..." From the clear, unequivocal andunambiguous wordings of Order 11(5)(1) & (2) of the High Court of Lagos State Civil Procedure Rules, 2012, indeciding an application for Summary Judgment, it is the discretion of the learned trial Judge to determinewhether it appears to him that the Defendant has a good defense or that the Defendant has no good defense.It is my considered view that in determining whether or not the Defense of the Defendant is "good", the trialCourt, will certainly not be expected to evaluate evidence of the defense put forward by the defendant at thisstage, the Court is however expected to look at the facts deposed to in the Counter-Affidavit and determineprima-facie if it affords a defense to the action. See CHANCHANGI AIRLINES (NIG.) LTD Vs. AFRICANPETROLEUM PLC (2014) LPELR-22922 (CA) Pg. 17-18, Paras. C - C and NU METRO RETAIL NIG. LTD Vs. TRADEXS.R.L. (2017) LPELR- 42329 (CA) Pg.36-38, Paras. D - B.In the instant case, the Appellant filed a Counter-Affidavit against the Motion for Summary Judgment on 8thday of May, 2013 as contained at pages 88 - 90 of Vol. 1 of the Records of Appeal wherein the Appellantthrough the deponent averred at paragraph 10 and referred to an Order of Court dated 15th April, 2011. Thesaid order was attached and marked as Exhibit "GE3" and is contained at pages 95 - 96 of Vol. 1 of theRecords of Appeal. On the face of the said order, it is clear that the said Order was made by L.A.F., Oluyemi(Mrs.) J. on the 15th April, 2011 pursuant to a Motion Exparte dated and filed on the 8th April, 2011; that it isnot a final Order which finally determines the rights of the parties; that the said Order specifies a return dateof 29th April, 2011. At page 207 of Vol. 1 of the Records of Appeal, the learned trial Judge in exercise of hispowers held as follows:"I have perused the counter-affidavit of the Defendant and it is my humble view that the Defendant has fromthe averments made admissions to the Claimant's claim. The Defendant did not deny that it froze the accountof the Claimant nor did it deny that the bank refused to honor the Claimant's cheques, Rather, the defendantby its pleadings has tried to justify its conduct...In conclusion I find that the defense of the Defendant is unmeritorious and I so hold."From the foregoing therefore, I am of the view that the exercise by the learned trial Judge of his discretion hasnot resulted in failure of justice; I have not seen a flick of miscarriage of justice in the decision of the LowerCourt. See OLATUBOSUN Vs. TEXACO NIG. PLC (Supra); FALEYE & ORS Vs. DADA & ORS (Supra) and ANYAHVs. AFRICAN NEWSPAPER OF NIG. LTD. (Supra) where the Supreme Court of Nigeria held as follows: "It is notin all cases that an Appeal Court will interfere with the exercise of discretion by a trial Judge, simply because itdid not favour one of the parties litigating before him. The Court will not interfere with the exercise ofdiscretion in the absence of proof that it was wrongly exercised.See: SANUSI BROTHERS (NIG) LTD Vs. COTIA C.E.I.S.A. [2000] 11 NWLR (Pt.679) 566; (2000) LPELR-3006 (Sc)Pg.25, Para. A and ADEBISI MCGREGOR ASSOCIATES LTD Vs. N.M.B LTD (1996) 2 NWLR (Pt.431) 378; (1996)LPELR-82 (SC) Pg. 12-13, Paras. E - A, where the Supreme Court per OGWUEGBU JSC held as follows:"I will observe straight away that where a defendant under Order 10 procedure files his affidavit as requiredby the rules, the mere fact of such filing does not automatically entitle him to leave to defend. It is the dutyand obligation of the Court to satisfy itself that the defendant has a good defense to the action on the merits.To satisfy himself as to whether there are facts sufficient to entitle the defendant to defend, he has to look atall the papers filed, the plaintiffs statement of claim, the affidavit sworn to on plaintiffs behalf, the guarantee(Exhibit "AM 1" or "A"), the affidavit to show cause and the statement of defense filed by the defendanttogether with all the exhibits annexed to them."I must for the avoidance of doubt state clearly that the trial Court is not expected to swallow the defendant'saffidavit hook line and sinker, and automatically grant the Appellant leave to defend without satisfying itselfthat the defense put forward is good and arguable, so doing will amount to arm-twisting the Lower Court or anattempt to fetter its discretion. Courts must be allowed the necessary leverage to exercise discretion withoutbondage or be given tacit indication that discretion is prone to the shackles of the appellate Court. In theabsence of solid, cogent and convincing proof that the trial Court wrongly exercised the discretion conferredon it by Order 11(5) of the High Court of Lagos State Civil Procedure Rules, 2012. I am inclined to resolveissues No. 2 and 3 against the Appellant in favor of the Respondent."Per ABUBAKAR, J.C.A. (Pp. 25-30, Paras.E-D) - read in context

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TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading

Judgment): This appeal emanates from the Ruling of the

High Court of Lagos State, delivered by O. A. Taiwo J, on

the 12th day of July, 2012 in Suit No: ID/ADR/92/12 as

found at pages 205 - 209 of Vol. 1 of the Records of Appeal

wherein the learned trial Judge held that the defense of the

Defendant is unmeritorious.

The Respondent on the 14th day of February, 2013 filed

Writ of Summons and Statement of Claim contained at

pages 1 - 6 of Vol. 1 of the Records of Appeal as well as the

Motion on Notice for Summary Judgment contained at

pages 23 - 27 of Vol. 1 of the Records of Appeal wherein the

Respondent as Applicant prayed the Lower Court to enter

summary judgment in its favour. The Appellant filed a

Counter-Affidavit against the Motion for Summary

Judgment on the 8th day of May, 2013 as found at pages 88

- 90 of Vol.1 of the Records of Appeal; the Respondent filed

a reply to the Appellants Counter-Affidavit as contained at

pages 177 - 184 of Vol. 1 of the Records of Appeal and the

Appellant filed further Counter-Affidavit on the 1st day of

July, 2013 contained at pages 185 - 186 of Vol. 1

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of the Records of Appeal and on the 12th day of July, 2013,

the Lower Court delivered its Ruling as found at pages 205

- 209 of Vol. 1 of the Records of Appeal wherein the learned

trial Judge entered Summary of judgment in favour of the

Respondent, this is in brief the summary of facts grounding

this appeal.

Peeved by the decision of the Lower Court, the Appellants

filed this appeal. The Amended Notice of Appeal was filed

on the 29th May of April, 2016 and premised on three[3]

grounds. The Appellants' Brief of Argument was filed by

Abidemi Akinloye on the 10th day, October, 2016 but

deemed as properly filed and served on the 3rd day of May,

201.7. The Appellant also filed a Reply Brief on the 5th day

of May, 2017. The Respondent's Brief on the other hand

was filed on the 8th day of December, 2016 through

learned counsel, Olawale Falaiye Esq.; same was also

deemed as properly filed and served on the 3rd day of May,

2017. Learned counsel for the Appellants distilled (3) three

issues for determination as reproduced below:

1. Whether the learned Judge at the Lower Court

exercised her discretion correctly in granting the

orders contained in her

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ruling of 12th July 2013 given the non-disclosure of

the material facts relevant to the determination of the

application for summary judgment by the Respondent

in the Lower Court.

2. Whether it was right for the learned Judge to have

construed and evaluated evidence at the stage of

deciding the Motion for Summary Judgment.

3. Whether any miscarriage of justice resulted from

the Ruling complained of in this appeal.

The Respondent formulated no issues for determination but

adopted the issues crafted by the Appellants. The

Respondent submitted argument on the issues.

SUBMISSIONS OF COUNSEL

ISSUE 1

Learned counsel for the Appellant referred to UDENSI vs.

ODUSOTE [2003] 6 NWLR (Pt.817) Pg. 545;

OGBUEHI Vs. GOVERNOR OF IMO STATE [1995] 9

NWLR (Pt.417) Pg.53 and UNIVERSITY OF LAGOS Vs.

AIGORO [1985] 1 NWLR (pt.1) pg.143 to contend that

though the grant and refusal of an application is purely

within the discretionary powers of the trial Court, such

discretion must at all times be exercised judicially and

judiciously on sufficient materials.

Counsel further referred to WILLIAMS Vs. WILLIAMS

[1987] 2 NWLR (Pt.54) Pg. 66;

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SARAKI Vs. KOTOYE [1990) NWLR (Pt.143) Pg.144 at

171; NGWU Vs. ONUIGBO [1999] 13 NWLR (Pt.636)

Pg. 512 at 525-525; OYEKANMI Vs. NEPA [2000] 15

NWLR (Pt.690) Pg.414 at 438-439; ADEJUMO Vs.

STATE [2006] 9 NWLR (Pt.986) Pg.627 and SOLANKE

Vs. AJIBOLA [1968] NSCC (Vol. 7) Pg. 231 at 235 to

submit that a discretion properly exercised by a trial/Lower

Court will not be interfered with by an appellate Court even

if the appellate Court was of the view that it might have

exercised the discretion differently except where the

discretion of the Lower Court was exercised upon a wrong

principle of law or mistake or misrepresentation of facts or

excluded relevant matters thereby resulting in injustice.

Learned counsel referred to pages 11-12 & 62 of the

additional Records of Appeal to argue that the Petition and

Motion for Interlocutory Injunction both seeking to restrain

the Respondent from actions it sought in the prayers in the

Motion for Summary Judgment at the time of events

leading to this suit and that the Respondent concealed the

existence of the Petition and the Motion for Interlocutory

Injunction from the Lower Court thereby

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leading the Lower Court to exercise its discretion in

granting the Motion for Summary Judgment under a

misapprehension of facts. Counsel submitted that if the

learned trial Judge had been aware of the pendency of the

Petition and the Motion for Interlocutory Injunction, he

would have exercised his discretion differently and

certainly not in favour of the Respondent.

Learned counsel submitted that the Appellant only became

aware of the Petition and Motion for Interlocutory

Injunction after the Ruling had been given thereby

necessitating the need to raise fresh issue and fresh

evidence before this Court. Counsel urged this Court to

hold that the concealment of the Petition and Motion for

Interlocutory Injunction which constitute relevant and

material facts required for the determination of this suit led

the learned trial Judge to make a Ruling based on

misapprehension of facts. Learned counsel submitted that

this Court can interfere with the exercise of discretion of

the trial Judge to set aside the Ruling which was arrived at

based on misapprehension of facts.

The learned Counsel for the Respondent while addressing

on this issue submitted that this Court must reject the

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argument of the Appellant on this issue. Learned counsel

for the Respondent referred to Section 256(1) of the

Evidence Act, 2011 to contend that even though the

Respondent did not oppose the Appellant's application for

leave to introduce fresh facts before this Court, the

Appellant still had the burden of showing that these new

facts are sufficient to prove the fact of concealment the

Appellant alleged. Counsel further referred to Section 46 of

the Evidence Act, 2011, to contend that judicial

proceedings in one suit are completely irrelevant in another

suit except where such proceedings are useful for the

purpose of proving a fact that the Evidence Act has

permitted, and that the Appellant has not established the

argument that a suit pending between the Respondent and

some other parties pending before the Federal High Court

will constitute a bar to granting the motion for summary

judgment by the Lower Court.

Learned counsel argued that the parties and subject matter

in the suit referred to are completely different from those

in the instant suit and that the suit was discontinued by the

Petitioners therein sometime in July, 2014.

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Counsel urged this Court to hold that the processes being

relied upon by the Appellant are completely irrelevant to

this suit and cannot be used to prove anything. Learned

counsel further argued that even if the processes are found

to be relevant and admissible, the Appellant had failed to

prove any act of concealment by the Respondent.

Learned counsel submitted that the 19 persons in the

purportedly concealed suit brought an application for

joinder to the instant suit and that even the Appellant as far

back as December, 2013 brought the processes to the

knowledge of the Lower Court claiming to have just

become accidentally aware, and yet claimed before this

Court to have become accidentally aware of the processes

during the preparation of argument. Learned counsel

submitted that the Respondent cannot be accused of

concealing what is known to others and therefore urged

this Court to hold that there was no concealment of any

process by the Respondent.

Learned counsel referred to MOKWE Vs. WILLIAMS

[1997] 11 NWLR (Pt. 528) Pg. 309; FERODO LTD Vs.

IBETO IND LTD [2004] 5 NWLR (Pt.866) Pg. 317 and

THOR LTD V. FCMB (2002) 6 NWLR (Pt.757) P9.427

to contend that the

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instant issue for determination is incompetent not having

arisen from the decision of the Lower Court and should

therefore be struck out. Counsel further urged this Court to

hold that this issue is hypothetical and academic because

the Appellant has speculated on what the Lower Court

would have done had the referred processes been brought

to its notice. Learned counsel submitted that the Appellant

having become aware of the processes while the case was

at the Lower Court and yet failed to bring same to the

notice of the Court cannot complain as to what the Lower

Court could have done because such complaint becomes

merely hypothetical and ought not to be entertained by this

Court. Learned Counsel therefore urged this Court to

resolve this issue against the Appellant.

In the Reply Brief, learned Counsel for the Appellant

submitted that the Appellant was unaware of the Petition

and Motion for Interlocutory Injunction at the time of filing

its Notice of Appeal in the instant suit and that it took over

one and a half year before the Appellant could obtain

Certified True Copies of the processes constituting the

additional facts in order to file its Motion for leave to

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adduce additional facts and evidence. Counsel argued that

it was the duty of the Respondent to disclose all material

facts that will aid the judge to come to a fair and just

decision on the matter and that, it is irrelevant whether the

parties and subject matter in the other suit are different

from those of the instant suit. Learned counsel further

submitted that the facts which were concealed would have

repudiated the facts claimed by the Respondent before the

Lower Court and that these concealed facts fall within the

purview of relevancy contemplated by Section 46 of the

Evidence Act, 2011.

On the Respondent's submission that this issue did not

arise from the decision of the Lower Court, learned Counsel

for the Appellant referred to ground 1 of the Amended

Notice of Appeal and particulars of error stated there-

under to submit that this issue was distilled from Ground

1 of the Amended Notice of Appeal which relates to the

decision of the Lower Court. Counsel further submitted that

MOKWE Vs. WILLIAMS (Supra) relied upon by the

Respondent is irrelevant to this matter and that it is clear,

even from the Ruling of the Lower Court, that the

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Court would have ruled differently if it had been aware that

the actions of the Respondent were the subject matter of a

suit at the Federal High Court. Learned counsel submitted

that the Appellant is not speculating on what would have

happened at the Lower Court and that this Court ought to

hold that the discretion of the Lower Court was exercised

erroneously based on misapprehension of facts.

ISSUE 2

Learned counsel for the Appellants referred to MACAULAY

Vs. NAL MERCHANT BANK [1990] 4 NWLR (Pt.144)

pg.283 and COTIA CEISA S.A. Vs. SANNI BR0THER

(NIG) LTD [2000] 6 SC [Pt.III) Pg. 43 to submit that a

Court can enter summary judgment only where, assuming

all the facts to be in favour of the Defendant, they do not

amount to a defense in law. Counsel contended that where

there is a triable issue, even if it may appear that the

defense is not likely to succeed, the Defendant should not

be prevented from laying his defense before the Court by

having summary judgment entered against him.

Learned counsel submitted that whether the defense is

proved or not, or whether it will constitute a complete

defense is not the issue at this stage but only becomes an

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issue after the Defendant has been given an opportunity to

put his defense forward. Counsel submitted that by

entering Summary Judgment against the Appellant on the

ground that the Ruling of Oluyemi J. relied upon by the

Appellant as defense has elapsed, the trial Court had

descended into evaluation of evidence instead of merely

considering whether the Appellant's freezing of the

Respondent's accounts based on the Ruling of Oluyemi J,

constituted a defense which raises triable issue.

Learned counsel argued that the learned trial judge should

not have considered the fact that the Ruling of Oluyemi J.

had elapsed when he had not granted the Appellant leave

to defend the suit and that it is upon granting the Appellant

leave that the issue of the Ruling of Oluyemi J. would have

been tried and proved or disproved. Counsel referred to

UNIBEN Vs. K. T. ORG [2007] 14 NWLR (Pt.1055)

Pg.441 at 462, Para. C to submit that under summary

judgment, what the trial Court should look for when

determining whether or not to grant leave to defend a suit

are facts which raise a triable issue, and not proof of those

facts. Learned counsel urged this Court to resolve this

issue in favour of the Appellant.

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The learned Counsel for the Respondent referred to

MACAULY Vs. NAL MERCHANT BANK (Supra) at Pg.

312 and the Ruling of the Lower Court to submit that the

learned trial Judge properly applied the decision in

MACAULY Vs. NAL MERCHANT BANK [Supra).

Learned counsel further submitted that the ex-parte

injunction granted by Oluyemi J. expired after 14 days

according to the Rules of the Lower Court and the Lower

Court needed no trial on the issue. Counsel further referred

to the Appellant's letter dated 23rd February, 2011, where

the Appellant refused to freeze the Respondent's account.

Learned counsel submitted that the summary judgment

entered by the Lower Court was proper and that there was

no triable issue to be set down for trial. Counsel urged this

Court to resolve this issue against the Appellant.

In Reply to the Respondent's submission on this issue, the

counsel for the Appellant argued that the decision in

MACAULY Vs. NAL MERCHANT BANK (Supra) is that

the Court can only evaluate evidence on a document when

deciding an application for summary judgment where the

only point involved is the construction of that document.

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Learned counsel argued that in the instant case, the Ruling

of Oluyemi J. was not the only point for consideration but

that the Lower Court considered many points in arriving at

its Ruling herein appealed. Counsel further submitted that

the Lower Court did not only evaluate the evidence in the

Ruling of Oluyemi J. but also evaluated the totality of

evidence at the Summary judgment stage. Counsel

concluded that there are triable issues before the Lower

Court and that the trial Court should not have evaluated

evidence at the Summary Judgment stage.

ISSUE 3

Learned counsel for the Appellants referred to A.G

LEVENTIS (NIG) PLC Vs. AKPU [2007] 17 NWLR

(Pt.1063) Pg. 416, Paras. H - A and LARMIE Vs. DATA

PROCESSING MAINTENANCE & SERVICES LTD

[2005] 18 NWLR (Pt. 958) Pg. 438 at 463, Paras. E - G

to submit that it is not every mistake of a Lower Court that

will result in its judgment being reversed on appeal unless

such mistake is shown to have occasioned a miscarriage of

justice. Counsel contended that the appellate Court will

interfere with or reverse a Lower Court's decision when it

can be demonstrated that it is probable that the result of

the

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proceedings would have been different if the error had not

been made, or if it is shown that the Lower Court's mistake

changed the result of the proceedings.

Learned counse l fur ther submit ted that the

misapprehension of facts occasioned by the concealment of

material facts by the Respondent resulted in miscarriage of

justice against the Appellant. Counsel argued that the

Lower Court in ruling that the facts presented by the

Appellant in its Statement of Defense and Counter Affidavit

were not proved prevented the Appellant from entering a

defense thereby occasioning a miscarriage of justice.

Counsel also contended that the Lower Court reached the

wrong conclusion because it had evaluated evidence when

it should only have considered the facts presented by the

Appellants. Learned counsel for the Appellant urged this

Court to resolve this issue in favor of the Appellant and

allow the appeal.

On the third issue, learned counsel for the Respondent

submitted that the complain of miscarriage of justice by the

Appellant is only a summary of the arguments proffered by

the Appellant under issues 1 and 2 and therefore adopted

the Respondent's submission under issues 1 and 2.

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Learned counsel referred to ground 3 of the Notice of

Appeal and submitted that the said ground 3 was not

argued under issue No. 3 and therefore should be held by

this Court as abandoned. Counsel submitted that this

appeal is unmeritorious and should be dismissed.

In the Reply Brief, learned Counsel for the Appellant

reiterated that the decision of the Lower Court constituted

a miscarriage of justice to the Appellant and that the

Appellant should have been given a chance to enter its

defense. Counsel urged this Court to allow the Appeal, and

set aside the decision of the Lower Court.

RESOLUTION

ISSUE 1

The first issue is "Whether the learned Judge at the

Lower Court exercised her discretion correctly in

granting the orders contained in her ruling of 12th

July 2013 given the non-disclosure of the material

facts relevant to the determination of the application

for summary judgment by the Respondent in the

Lower Court." The Appellant's contention is that the

Respondent concealed the existence of the Petition and

Motion for Interlocutory Injunction from the Court, learned

Counsel contended that these materials are relevant to the

just and fair

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determination of the application, the concealment

according to Counsel led the Court to exercise its

discretion in granting the Motion for Summary judgment

under a misapprehension of facts and that in the

circumstances, this Court can interfere in the exercise of

the discretion of the trial Judge to set aside the Ruling

which was arrived at based on misapprehension of

facts. The Respondent argued that apart from the

processes being relied upon by the Appellant being within

the knowledge of the Appellant and other persons and

could not have been concealed; the said processes are

completely irrelevant to this suit and cannot be used to

prove anything and that even if the processes are found to

be relevant and admissible, the Appellant had failed to

prove any concealment by the Respondent.

From the submissions of Counsel for the parties in this

appeal, it is without doubt that both the Appellant and the

Respondent appreciate the settled position of the law that

the grant or refusal of application is an exercise of

discretion of the trial Judge which cannot be interfered

with by an appellate Court except in special circumstances,

and

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such circumstances do not include that the appellate Court

would have exercised such discretion differently. See

ANYAH Vs. AFRICAN NEWSPAPER OF NIG. LTD.

[1992] NWLR (Pt.247) Pg. 319; (1992) LPELR-511

(SC) Pg.20-21, Paras. G - A where the Supreme Court

held that:

"It is not in all cases that an Appeal Court will

interfere with the exercise of discretion by a trial

Judge, simply because it did not favour one of the

parties litigating before him. The Court will not

interfere with the exercise of discretion in the

absence of proof that it was wrongly exercised. You

cannot lay down hard and fast rules as to the exercise

of judicial discretion by a Court for the moment you

do that, the discretion is fettered."

In OLATUBOSUN Vs. TEXACO NIG. PLC (2012)

LPELR-7805 (SC) Pg. 18, Paras. C - D the Supreme

Court of Nigeria held that

"...an appellate Court like ours will not interfere with

the exercise of discretion of the Court below merely

because this Court would have acted differently.

...this Court will only interfere where the discretion

exercised is manifestly wrong, arbitrary, reckless and

injudicious."

Also, in FALEYE & ORS Vs. DADA & ORS (2016)

LPELR-

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40297 (SC) Pg. 33-34, Paras. E - C, the Supreme Court

per MUHAMMAD JSC held as follows:

“...This Court has stated it times without number that

it is none of its functions or indeed that of an

appellate Court to substitute its own views of the

evidence for those of the trial Court that is better

placed to deal with those matters. The appellate High

Court could only have interfered with findings of facts

of the trial Customary Court when the findings are

perverse and/or consequent upon improper exercise

of judicial discretion further resulting in miscarriage

of justice..."

In contending that the discretion of the trial Court was

exercised upon misapprehension of facts, the Appellant

referred to pages 11-12 & 62 of the additional records of

Appeal to contend that the Petition and Motion for

Interlocutory Injunction both seeking to restrain the

Respondent from actions it sought in the prayers in the

Motion for Summary Judgment at the time of events

leading to this suit and were concealed from the Lower

Court by the Respondent thereby leading the Court to

exercise its discretion in granting the Motion for Summary

Judgment under a misapprehension of facts.

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The question at this point is whether the existence of the

P e t i t i o n a n d M o t i o n o n N o t i c e i n S u i t N o :

FHC/IKJ/CP/137/2012 which were filed against the

Respondent and 2 others were concealed by the

Respondent who was the Claimant in the instant suit at the

Lower Court and whether the absence of these facts are

substantial to have led to a miscarriage of justice in the

decision of the Lower Court.

In the instant suit, the Respondent on the 14th day of

February, 2013 filed the Writ of Summons and Statement

of Claim contained at pages 1 - 6 of Vol. 1 of the Records of

Appeal as well as the Motion on Notice for Summary

Judgment contained at pages 23 - 27 of Vol. 1 of the

Records of Appeal wherein the Respondent as Applicant

sought for the following reliefs:

1. AN ORDER entering summary judgment in favour

of the Claimant/Applicant as per the following Claim

in its Writ of Summons and Statement of Claim thus:

An order that the Defendant forthwith unfreeze the

Claimant's Account No.0129425037 & Deposit

Account No. 0012120129425001 and allow normal

operations to resume on both accounts (without

prejudice to the generality of the foregoing):

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a. Directing its servants, agents and/or privies to

allow withdrawals from, transfers-in and out- and

lodgments into the Accounts.

b. Honoring all instruments drawn/instructions given

on the Accounts by the Claimant.

2. And for such order or further orders as the Court

may deem fit to make in the circumstance.

The Appellant filed a Counter-Affidavit in opposition to the

Motion for Summary Judgment on the 8th day of May, 2013

as contained at pages 88 - 90 of Vol. 1 of the Records of

Appeal; the Respondent filed a Reply to the Appellant's

Counter-Affidavit as contained at pages 177 - 184 of Vol. 1

of the Records of Appeal and the Appellant filed further

Counter-Affidavit on the 1st day of July, 2013 contained at

pages 185 - 186 of Vol. 1 of the Records of Appeal and on

the 12th day of July, 2013, the Lower Court delivered its

Ruling as contained at pages 205 - 209 of Vol. 1. of the

Records of Appeal wherein the learned trial Judge found

that the defense of the Defendant is unmeritorious.

Now, to answer whether the existence of the Petition and

Motion on Notice in Suit No: FHC/LKJ/CP/137/2012 which

were filed against the Respondent and 2 others

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were concealed by the Respondent who was the Claimant

in the instant suit at the Lower Court and whether the

absence of these facts are substantial to have led to a

miscarriage of justice in the decision of the Lower Court; I

am of the view that the existence of the Petition and Motion

on Notice in Suit No: FHC/IKJ/CP/137/2012 which were

filed against the Respondent and 2 others were not

concealed by the Respondent neither can the absence of

these facts be said to be substantial to have led to

miscarriage of justice in the decision of the Lower Court.

It is clear from pages 151 - 152 of Vol. L of the Records of

Appeal Records that a Motion on Notice was filed on the

11th day of June, 2013 wherein 19 Applicants sought to be

joined in the instant suit as 2nd - 20th Defendants. In the

Affidavit in Support of the said Motion contained at pages

153 - 156 of Vol. 1 of the Records of Appeal as well as in

the Written Address in support of the Motion contained at

pages 169 - 176 of Vol. 1. of the Records of Appeal, the 19

Applicants who are the same Petitioners in Suit No:

FHC/IKJ/CP/137/2012 were aware of the existence of the

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Petition and Motion on Notice which were filed respectively

on the 18th June, 2012 and 11th October, 2012 and failed

and/or neglected to refer to the pendency of Suit No:

FHC/IKJ /CP/137/2012 and the Petition and Motion on

Notice which they filed. In the circumstance therefore, the

Respondent could not have been said to have concealed the

existence of the Petition and Motion on Notice in Suit No:

FHC/IKJ/CP/137/2012 which was well within the knowledge

of the Appellant as well as the 19 Applicants who sought to

be joined as parties before the Lower Court.

The Appellant did not contradict the Respondent's

submission that Suit No: FHC/IKJ/CP/137/2012 was

discontinued by the Petitioners sometime in July, 2014. In

the circumstances therefore, the Appellant has failed to

establish that the Respondent concealed the existence of

t h e P e t i t i o n a n d M o t i o n o n N o t i c e i n S u i t

No:FHC/IKJ/CP/137/2012 as alleged by the Appellant. The

Appellant has equally not established that the absence of

the knowledge of the existence of the Petition and Motion

on Notice in Suit No:FHC/IKJ/CP/137/2012 led to or

occasioned a miscarriage of justice. In the instant case, the

existence or otherwise of a pending suit is not

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material to the determination of the Motion for Summary

Judgment by the Respondent which the Appellant had filed

a Counter-Affidavit and further Counter-Affidavit. See

ADEBAYO Vs. A.G. OGUN STATE [2008] 7 NWLR

(Pt.1055) 201; (2008) LPELR-80 (SC) Pg. 12, Paras. F

- G; SAVANNAH BANK OF (NIG.) LTD Vs. STARITE

IND. OVERSEAS CORPORATION [2009] 2-3 NWLR

(Pt.1144) 491; (2009) LPELR-3020 (SC) Pg.27, Paras.

E - F; UBA PLC & ANOR Vs. UGOENYI & ANOR (2011)

LPELR-5065 (CA) Pg.70, Paras. C - E and UNILORIN

Vs. AKINOLA (2014) LPELR-23275 (SC) Pg.36, Paras.

E - G. In UBA PLC & ANOR Vs. UGOENYI & ANOR

(Supra) this Court held that:

"In law, 'a miscarriage of justice can only be said to

present itself to a Court of law when that Court after

examination of the entire case, including the

evidence, is of the opinion that it is reasonably

probable that a result more favorable to the appealing

party would have been reached in the absence of the

error complained of…”

I hold the view that the Respondent in the instant case did

not conceal the existence of the Petition and the Motion on

Notice in Suit No: FHC/IKJ/CP/137/2012 or any other

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material fact sufficient to mislead the Lower Court. I also

hold the view that the existence or otherwise of Suit No:

FHC/IKJ/CP/137/2012 is not material to the determination

of the Motion for Summary Judgment. This issue is

therefore resolved in favour of the Respondent against the

Appellant.

ISSUES 2 & 3

The second issue for determination in this appeal is

"Whether it was right for the learned trial Judge to

have construed and evaluated evidence at the stage of

deciding the motion for summary Judgment" while the

third issue is "Whether any miscarriage of justice

resulted from the Ruling complained of in this

appeal." The Appellant contended that in a Summary

Judgment Application, where there is a triable issue, the

Defendant should be allowed to lay his defense before the

Court and that whether it appears that the defense is not

likely to succeed; whether the defense is proved or not, or

whether it will constitute a complete defense is not the

issue at this stage but only becomes an issue after the

Defendant has been given an opportunity to put his defense

forward.

The Appellant further argued that by entering Summary

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Judgment against the Appellant on the ground that the

Ruling of Oluyemi J, relied upon by the Appellant as

defense had elapsed, the trial Court had descended into

evaluation of evidence instead of merely considering

whether the Appellant's freezing of the Respondent's

accounts based on the said Ruling of Oluyemi J. constituted

a defense which raises triable issue and that the Lower

Court did not only evaluate the evidence in the Ruling but

also evaluated the totality of the evidence at the Summary

Judgment stage. The stand of the Respondent is that the ex-

parte injunction granted by Oluyemi J. expired after 14

days according to the Rules of the Lower Court and the

Lower Court needed no trial on the issue and therefore, the

summary judgment entered by the Lower Court was proper

because there was no triable issue to be set down for trial.

The relevant Rule of the Lower Court applicable at the time

this suit was commenced is the High Court of Lagos State

Civil Procedure Rules, 2012 and Order 11 (5) (1) & (2) the

Rules provides clearly as follows:

1. Where it appears to a judge that the Defendant has

a good defense and ought to be permitted to defend

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the claim he may be granted leave to defend the

claim.

2. Where it appears to a Judge that the Defendant has

no good defense the Judge may thereupon enter

judgment for a Claimant."

(Underlined by me)

In UMECHE v. CITIBANK NIG LTD & ANOR (2013)

LPELR-20722 (CA) Pg. 17, Paras. D - F, this Court held

that: "…the essence of proceedings for summary

judgment under Order 11 ...is to give judgment for

admitted claims or claims that are not met with a

viable or arguable defense..." From the clear,

unequivocal and unambiguous wordings of Order 11(5)(1)

& (2) of the High Court of Lagos State Civil Procedure

Rules, 2012, in deciding an application for Summary

Judgment, it is the discretion of the learned trial Judge to

determine whether it appears to him that the Defendant

has a good defense or that the Defendant has no good

defense. It is my considered view that in determining

whether or not the Defense of the Defendant is "good", the

trial Court, will certainly not be expected to evaluate

evidence of the defense put forward by the defendant at

this stage, the Court is however expected to look at the

facts deposed to in the Counter-Affidavit and

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determine prima-facie if it affords a defense to the action.

See CHANCHANGI AIRLINES (NIG.) LTD Vs. AFRICAN

PETROLEUM PLC (2014) LPELR-22922 (CA) Pg.

17-18, Paras. C - C and NU METRO RETAIL NIG. LTD

Vs. TRADEX S.R.L. (2017) LPELR- 42329 (CA)

Pg.36-38, Paras. D - B.

In the instant case, the Appellant filed a Counter-Affidavit

against the Motion for Summary Judgment on 8th day of

May, 2013 as contained at pages 88 - 90 of Vol. 1 of the

Records of Appeal wherein the Appellant through the

deponent averred at paragraph 10 and referred to an Order

of Court dated 15th April, 2011. The said order was

attached and marked as Exhibit "GE3" and is contained at

pages 95 - 96 of Vol. 1 of the Records of Appeal. On the

face of the said order, it is clear that the said Order was

made by L.A.F., Oluyemi (Mrs.) J. on the 15th April, 2011

pursuant to a Motion Exparte dated and filed on the 8th

April, 2011; that it is not a final Order which finally

determines the rights of the parties; that the said Order

specifies a return date of 29th April, 2011. At page 207 of

Vol. 1 of the Records of Appeal, the learned trial Judge in

exercise of his powers held as follows:

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“I have perused the counter-affidavit of the Defendant

and it is my humble view that the Defendant has from

the averments made admissions to the Claimant's

claim. The Defendant did not deny that it froze the

account of the Claimant nor did it deny that the bank

refused to honor the Claimant's cheques, Rather, the

defendant by its pleadings has tried to justify its

conduct...

In conclusion I find that the defense of the Defendant

is unmeritorious and I so hold."

From the foregoing therefore, I am of the view that the

exercise by the learned trial Judge of his discretion has not

resulted in failure of justice; I have not seen a flick of

miscarriage of justice in the decision of the Lower Court.

See OLATUBOSUN Vs. TEXACO NIG. PLC (Supra);

FALEYE & ORS Vs. DADA & ORS (Supra) and ANYAH

Vs. AFRICAN NEWSPAPER OF NIG. LTD. (Supra)

where the Supreme Court of Nigeria held as follows: "It is

not in all cases that an Appeal Court will interfere

with the exercise of discretion by a trial Judge, simply

because it did not favour one of the parties litigating

before him. The Court will not interfere with the

exercise of discretion in the absence of proof that it

was wrongly exercised.

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See: SANUSI BROTHERS (NIG) LTD Vs. COTIA

C.E.I.S.A. [2000] 11 NWLR (Pt.679) 566; (2000)

LPELR-3006 (Sc) Pg.25, Para. A and ADEBISI

MCGREGOR ASSOCIATES LTD Vs. N.M.B LTD (1996)

2 NWLR (Pt.431) 378; (1996) LPELR-82 (SC) Pg.

12-13, Paras. E - A, where the Supreme Court per

OGWUEGBU JSC held as follows:

"I will observe straight away that where a defendant

under Order 10 procedure files his affidavit as

required by the rules, the mere fact of such filing

does not automatically entitle him to leave to defend.

It is the duty and obligation of the Court to satisfy

itself that the defendant has a good defense to the

action on the merits. To satisfy himself as to whether

there are facts sufficient to entitle the defendant to

defend, he has to look at all the papers filed, the

plaintiffs statement of claim, the affidavit sworn to on

plaintiffs behalf, the guarantee (Exhibit "AM 1" or

“A”), the affidavit to show cause and the statement of

defense filed by the defendant together with all the

exhibits annexed to them."

I must for the avoidance of doubt state clearly that the trial

Court is not expected to swallow the defendant's

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affidavit hook line and sinker, and automatically grant the

Appellant leave to defend without satisfying itself that the

defense put forward is good and arguable, so doing will

amount to arm-twisting the Lower Court or an attempt to

fetter its discretion. Courts must be allowed the necessary

leverage to exercise discretion without bondage or be given

tacit indication that discretion is prone to the shackles of

the appellate Court. In the absence of solid, cogent and

convincing proof that the trial Court wrongly exercised the

discretion conferred on it by Order 11(5) of the High Court

of Lagos State Civil Procedure Rules, 2012. I am inclined to

resolve issues No. 2 and 3 against the Appellant in favor of

the Respondent.

On the whole therefore, I find no merit in this appeal and I

hereby dismiss it. The judgment of the Lower Court

delivered by O. A. Taiwo J. on the 12th day of July, 2012 in

Suit No: ID/ADR/92/12 is hereby affirmed.

Cost of N100,000.00 is awarded to the Respondent against

the Appellant.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the

privilege of reading in draft the lead judgment of my

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learned brother TIJJANI ABUBAKAR JCA just delivered with

which I agree and adopt as mine. I have nothing more to

add.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was

privileged to have read before now the draft of the

judgment which has just been rendered by my learned

brother, Tijjani Abubakar, JCA. I am in entire agreement

with, and do not desire to add to, the reasoning and

conclusion therein contained. I adopt the entire decision as

mine.

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Appearances:

Abidemi Akinyele (Mrs) with him, YetundeOnadipe (Mrs) For Appellant(s)

O. A. R. Ogunde SAN with him, O. Odusanya ForRespondent(s)

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