(2018) LPELR-44111(CA)

Transcription

1 DWELLSPACE LTD v. TEXTWORTH (NIG) LTD & ANOR CITATION: In the Court of Appeal In the Lagos Judicial Division Holden at Lagos ON TUESDAY, 30TH JANUARY, 2018 Suit No: CA/L/425/2014 MOHAMMED LAWAL GARBA TIJJANI ABUBAKAR YARGATA BYENCHIT NIMPAR Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal DWELLSPACE LIMITED - Appellant(s) And 1. TEXTWORTH NIGERIA LIMITED 2. INVER-DAFFODIL NIGERIA LIMITED RATIO DECIDENDI - Respondent(s)

2 1. APPEAL - FORMULATION OF ISSUE(S) FOR DETERMINATION: Whether an Appeal Court can adopt or formulate issue(s) for determination "Let me state at this point that, issues for determination must have the character of projecting succinctly and clearly the substance of the grievance expressed in the grounds of appeal requiring resolution; an Appellate Court can therefore adopt, reframe or formulate entirely new issues if the issues have substantial bearing with the grounds of appeal contained in the Notice of appeal filed by the Appellant, provided also that the Court believes that determination of the issues would serve the purpose of resolving the issues in controversy in the appeal. See: IKEGWUOHA vs. OHAWUCHI (1996) 3 NWLR pt. 435 pg. 146, and EKUNOLA Vs. CBN (2006) 14 NWLR (pt. 1000) pg. 252."Per ABUBAKAR, J.C.A. (P. 23, Paras. A-D) - read in context

3 2. COMMERCIAL LAW - AGENCY: Effect of an agent acting within the scope of his authority for a disclosed principal "I have earlier found by the contents of Exhibit T1, the 3rd Defendant is an agent of the Appellant, a disclosed principal. The contents of Exhibit T1 are clear and unambiguous because the exhibits show that the 3rd Defendant is the Appellant's agent in respect of the subject matter herein. Section 169 of the Evidence Act, 2011 provides as follows: "When one person has, either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person's representation in interest, to deny the truth of that thing." There is no doubt that the Appellant has by Exhibit T1 represented to the 1st and 2nd Respondent that the 4th Defendant, is its accredited agent or representative who could act on its behalf in respect of the sale of the land sought to be purchased by the 1st and 2nd Respondents. The law will certainly not permit the Appellant to deny the existence of the relationship in futile attempt to avoid liability for the acts or omissions of the 3rd and 4th Defendants. The defence of the Appellant shows that the money allegedly refunded were paid to the 4th Defendant, its own agent and not the 1st and 2nd Respondents. As a matter of law, a disclosed principal may be sued and found liable on any contract made on his behalf and in respect of any money paid or received on his behalf by his agent, acting within the scope of his authority. See: NIGER PROGRESS LIMITED Vs. NORTH EAST LINE CORPORATION (Supra) and IKEDIFE & ANOR V. OBIENU (1975) 4 SC (REPRINT) 27. The 3rd and 4th Defendants did not defend the suit filed by the 1st and 2nd Respondents. They are deemed to have admitted the facts stated by the 1st and 2nd Respondents. Therefore, even though there is evidence that the sum of N28,000, was paid to the 4th Defendants by the Appellant on 25th March, 2011 but the balance of N24,000, due to the 1st and 2nd Respondents was not paid to the latter, it follows therefore that the Appellant, a disclosed principal is still liable for the claim of the 1st and 2nd Respondents as presently constituted, no amount of seemingly sham defense will extricate the Appellant from liability in the face of the obvious fact that the balance remains unpaid."per ABUBAKAR, J.C.A. (Pp , Paras. E-E) - read in context

4 3. COMMERCIAL LAW - AGENCY: Effect of an agent acting within the scope of his authority for a disclosed principal "The law is well settled that where an agent is found liable for the claim presented by a plaintiff, the Principal becomes jointly and severally liable in respect thereof. See GTB Vs. UMEH (2017) LPELR (CA)."Per ABUBAKAR, J.C.A. (P. 45, Paras. D-E) - read in context 4. COURT - DUTY OF COURT: Duty of trial Court to consider all evidence before it "I just wish to emphasize that it is trite that a Court must consider all relevant and material evidence in arriving at its judgment, see LUCKY v STATE (2016) LPELR (SC)."Per NIMPAR, J.C.A. (P. 46, Paras. E-F) - read in context

5 5. PRACTICE AND PROCEDURE - SUMMARY JUDGMENT PROCEDURE: Nature of summary judgment procedure "The nature and principle regarding summary judgment seems to me a settled one. The Supreme Court of Nigeria and this Court have reiterated in a long line of judicial decisions that the summary judgment procedure is adopted by the Plaintiff to obtain judgment without full trial where the Defendant has no defense to the action filed by the Plaintiff and where the latter's case is clear and reasonable. See the decision of the Supreme Court in OKAMBAH LTD vs. SULE (1990) LPELR (SC) where KAWU, JSC (of Blessed memory) stated that the procedure "is not designed to shut out a defendant who can show that there is a triable issue." In THOR LIMITED vs. FIRST CITY MERCHANT LIMITED (2005) 14 NWLR (Pt. 946) 695, the Supreme Court held as follows: "The summary judgment procedure which is similar to the undefended list procedure, is designed to enable a party obtain judgment especially in liquidated demand cases, without the need for a full trial where the other party cannot satisfy the Court that it should be allowed to defend the action." Summary Judgment is resorted to or given to the Plaintiff without necessity for plenary trial of an action, it also constitutes an integral part of prompt and expeditious determination of controversy between the contending parties without trial when there is no dispute on material facts, or inferences to be drawn from undisputed facts. In UBA & ANOR Vs. JARGABA (2007) 11 NWLR (pt. 1045) 247, the Supreme Court of Nigeria clearly set out the meaning of summary Judgment when the Court held as follows and I quote: "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 plain and straight forward, not for the devious and crafty." See also:maja vs. SAMOURIS (2002) 7 NWLR (pt.765) 78 and UTC (NIG.) LTD Vs. PAMOTEI & ORS (1989) 2 NWLR (pt. 103) 244."Per ABUBAKAR, J.C.A. (Pp , Paras. F-E) - read in context

6 6. PRACTICE AND PROCEDURE - SUMMARY JUDGMENT PROCEDURE: The provisions of Order 11 of the High Court of Lagos State (Civil Procedure) Rules, 2004 with respect to what must be fulfilled before a summary judgment will be entered in favour of a party "Now, the 1st Respondent's Application for summary Judgment was brought pursuant to Order 11 of the High Court of Lagos State Civil Procedure Rule, 2004 which is impari materia with the similar provision under the extant Rules of Court. It provides as follows: 1. Where a Claimant believes that there is no defence to his claim, he may file his originating process, the statement of Claim, list of documents to be relied upon, the depositions of his witnesses and an application for summary judgment which application shall be supported by an affidavit stating the grounds for his belief, and a written brief in respect thereof Where a party served with the processes and documents referred to in Rule 1 of this Order intends to defend the suit, he shall, not later than the time prescribed for defence, file: (a) his Statement of Defence; (b) depositions of his witnesses; (c) list and copies of documents to be used in his defence; and (d) a counter Affidavit and a written brief in reply to the application for summary judgment. 5. (1) where it appears to a judge that a Defendant has a good defence and ought to be permitted to defend the claim he may be granted leave to defend. (2) Where it appears to a Judge that the Defendant has no good defence the Judge may thereupon enter judgment for a Claimant. (3) Where it appears to a Judge that a Defendant has no good defence to part of the claim and no defence to other parts of the claim, the Judge may thereupon enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence."per ABUBAKAR, J.C.A. (Pp , Paras. E-A) - read in context

7 7. PRACTICE AND PROCEDURE - SUMMARY JUDGMENT PROCEDURE: Principles governing the determination of the grant of leave to defend an action under the summary judgment procedure "In an application for summary judgment, while the Court must always bear in mind that the purpose of Order 11, is to enable a Plaintiff obtain summary judgment without trial if he can prove his claim clearly and if the defendant is unable to set up a bonafide defence or raise an issue against the claim which ought to lead to the case being tried on the merit. It is also necessary that the trial Court looks at the facts put forward by the defendant in the various documents filed by him and see if the facts put together may, prima facie afford a defence to the Plaintiff's claim. It is therefore clear that the defendant needs not show that he has a complete defence to the action filed by the Plaintiff. and I must state that I am in agreement with the learned Counsel for the Appellant, that it is enough if the Defendant shows through the processes filed, that there is a fair probability of defence or triable issues or questions or that for other reasons, the matter ought to proceed to trial. For the avoidance of doubt, the question as to whether the defence put forward by the Defendant is provable and/or has merit is a matter to be considered and determined after the Defendant is granted leave by the Court to defend the claim against him; therefore, at the stage of determining the merit of an application for summary judgment, all the defendant has to show is whether the defendant has shown good reasons why the suit must be set down for trial. Needless to state that the Court can only determine the question whether the defendant has a complete defence to the claim or not after the hearing of evidence and at the time of evaluating the totality of the evidence adduced by the defendant. See: FEDERAL MILITARY GOVERNMENT Vs. SANNI (Supra). Therefore, where there is a triable issue, even where it appears that the defence is unlikely to succeed, the defendant should not ordinarily be prevented from placing his defence before the Court, before the trial Court comes to conclusion on his liability to the Claimant."Per ABUBAKAR, J.C.A. (Pp , Paras. B-A) - read in context

8 TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the High Court of Lagos State sitting in the Ikeja Division delivered on the 27th day of January, 2014 by Lawal-Akapo J. in suit No: LD/1981/2011. The 1st and 2nd Respondents in this appeal as Claimants at the Court below initiated this suit against the Appellant and two other Defendants by writ of Summons filed on the 2nd day of November, 2011 found at pages 1-18 of the Records of Appeal. The Respondents on the same day also filed a Motion on Notice found at pages of the Records of Appeal praying the lower Court for an order entering Summary Judgment against the Appellant(as Defendant). The Appellant as Defendant therefore filed a Counter- Affidavit and a written Address in opposition to the Motion for summary judgment as contained at pages of the Records of Appeal as well as a Statement of Defense to the substantive Suit found at pages of the Records of Appeal. The parties exchanged Pleadings and the lower Court delivered its Judgment contained at pages of the Records of Appeal on the 1

9 27th day of January, 2014 wherein the lower Court granted the Respondents' Motion for summary Judgment and entered Judgment in favor of the Respondents. The Appellant became dissatisfied with the decision of the lower Court and therefore filed an Amended Notice of appeal on the 13th day of July, 2016 containing six grounds of appeal. The Appellant's Brief of Argument was filed by learned counsel Ahmed Akanbi on the 18th day of November, The Appellants' counsel further filed a Reply Brief on the 24th day of January On the other hand, learned counsel, Olukayode Enitan who represented the 1st and 2nd Respondents on the 23rd day of December, 2016 filed a Notice of Intention to contend that the Decision of the Lower Court be affirmed on Grounds other Than Those Relied on by The Lower Court. The 1st and 2nd Respondents' Brief was also filed on the 23rd day of December, Learned counsel for the Appellant formulated four issues for determination in this appeal; the Appellant's issues for determination are reproduced as follows: 1. Whether or not the Lower Court breached the Appellant's right to fair hearing by failing to consider 2

10 all the Exhibits before the Court in its judgment? 2. Whether or not the Lower Court correctly applied the principles governing the grant of summary judgment in its judgment delivered on 27th January, 2014? 3. Whether or not the Lower Court was right in law to have granted 1st & 2nd Respondents a relief not sought by the 1st & 2nd Respondents? 4. Whether or not the Lower Court was right in Law by applying a wrong criteria [Sic] in granting the 1st and second Respondents' application for summary Judgment in the absence of cogent, compelling and admissible evidence upon which the decision was based. Whether in view of the facts and materials placed before the lower Court, the Court below was right in holding that the 1st & 2nd Respondents have fulfilled the conditions for the grant of Summary Judgment in their favor. As I stated earlier, the 1st and 2nd Respondents also filed a Notice of Intention to contend that the Decision of the lower Court be affirmed on grounds other than those relied on by the trial Court. The grounds upon which the Notice is predicated are also set out as follows: 1. The 3

11 lower Court based its decision on a wrong ground by holding that it is not in dispute that the land in question was offered for sale by the 1st Defendant on behalf of an undisclosed principal (page 148 of the printed records of appeal). 2. The argument of the 1st and 2nd Respondents at the lower Court was that the 2nd and 3rd Defendants were agents of a disclosed Principal i.e. the Appellant upon which the Court decided in favor of the 1st and 2nd Defendant. 3. Exhibit T1 attached to the application of summary judgment (page 24 of the Records) is a letter by the appellant establishing that the 2nd and 3rd Defendants are agent in the land transaction and upon which the lower Court relied in giving judgment against all the Defendants and in favor of the 1st and 2nd Respondents. SUBMISSIONS OF COUNSEL On the first issue, relating to Whether or not the lower Court breached the Appellants right to fair hearing by failing to consider all the Exhibits before the Court in its Judgment learned counsel for the Appellant contended that the lower Court failed to consider the Appellant's Exhibits A, B, C, D 4

12 and H attached to its Counter-Affidavit at pages and of the Records of Appeal and that the failure amounts to an infraction of the Appellant's right to fair hearing enshrined in Section 36 of the 1999 Constitution of the FRN (as amended). Learned counsel further referred to Exhibits E, F and G and the depositions of the Appellant's Counter-Affidavit particularly at paragraphs where it was deposed that the land in dispute between the parties was offered for sale at a total of N38,400, and that only N28,000, was received by the Appellant and subsequently returned/paid back for failure to pay the balance. Counsel argued that there was no documentary evidence before the lower Court to show that the Appellant received directly or through any agent the sum of N43,000, as alleged by the 1st and 2nd Respondents or any one whatsoever. Learned counsel submitted that the lower Court would have arrived at a different conclusion if it had taken into consideration the Appellant's depositions and the Exhibits attached particularly Exhibit H at page 115 of the Records of Appeal. Learned Counsel referred to 5

13 Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended); NEWSWATCH COMMUNICATIONS LIMITED vs. ATTA [2006] NWLR (pt. 993) pg. 181, paras. G - H and SALU vs. EGEIBON [1994] 6 NWLR (Pt. 348) Pg. 23 and CEEKAY TRADERS LTD VS. G.M COMPANY LTD [1992] 2 NWLR (Pt. 222) Pg. 132 and ATANO vs. A.G. BENDEL STATE [1988] 2 NWLR (pt.75) pg.201 to contend that the lower Court invoked the principles of fair hearing in favor of the 1st and 2nd Respondents to the disadvantage of the Appellant herein. Learned counsel submitted that like jurisdiction, the absence of fair hearing vitiates the proceedings however well and properly conducted. Learned counsel further referred to KOTOYE VS. CBN (1989) 1 NWLR (PT.98) PG.419 and ADIGUN VS. A.G. OYO STATE (1987) 1 NWLR (PT.53) PG. 678 and DEDUWA VS. OKORODUDU (1976) 10 SC Pg.329 and ATANO Vs. A.G. BENDEL STATE (1988) 2 NWLR (Pt.75) Pg.201 and KANO NATIVE AUTHORITY Vs. RAPHAEL OBIORA (1959) 4 FSC 266; (1959) 2 SCNLR 557 and EKIYOR & ANOR Vs. BOMOR (1997) 9 NWLR (PT.519) Pg.1 at 14 to submit that the failure by the lower Court to consider the Appellant s Exhibits D and H prevented the lower 6

14 Court from reaching a fair and just decision thereby occasioning a miscarriage of justice. Learned Counsel referred to OSAKWE VS. FEDERAL COLLEGE OF EDUCATION ASABA (2010) NWLR (Pt.1201) Pg.1 and submitted that the findings of the lower Court at page 148 of the Record of Appeal reveal that the learned trial Judge was passionate and moved by sentiments. Learned counsel cited OYEWOLE Vs. AKANDE (2009) 15 NWLR (Pt.1163) Pg.148 and OLUFEAGBA Vs. ABDUR- RAHEEM (2009) 18 NWLR (Pt.1173) Pg and urged this Court to resolve this issue in favour of the Appellant On the second issue, dealing with whether or not the lower Court applied the principles governing the grant of summary judgment in its judgment delivered on 27th January Learned counsel argued that the lower Court failed to apply the guiding principles on the grant of summary judgment before granting the 1st and 2nd Respondents' application for summary judgment. Learned Counsel argued that sufficient facts were alluded to in the Appellant s Counter-Affidavit in opposition to the application for summary Judgment that show that Appellant had a bonafide defense but 7

15 that the lower Court failed to properly evaluate these facts and the authorities cited in the written Address in support of the said Appellant's Counter-Affidavit. Learned counsel referred to pages of the Records of Appeal and submitted that the judgment of the lower Court is perverse because the lower Court failed to consider the purpose of summary judgment procedure in line with the decisions in OCEANIC BANK INTERNATIONAL PLC VS. C.S.S. LTD (2012) 9 NWLR (pt. 1305) Pg. 397 at 411 and OKAMBAH LIMITED Vs. SULE [1990] 7 NWLR (Pt. 1601) 1 pg. 8 Learned counsel referred to the 27 paragraph counter- Affidavit at pages of the Records of Appeal and the attached Exhibits D, E, F, G and H to contend that Appellant contested the 1st and 2nd Respondents' claims and that the lower Court ought to have given effect to the provision of Order 11 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules, Counsel referred to Order 11 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2012; ERNUWA Vs. CONSOLIDATED DISCOUNTS LIMITED [2001] 2 NWLR (Pt. 697) Pg, 42; OCEANIC BANK INTERNATIONAL PLC VS. C.S.S. LTD (supra); SHODIPO vs. LEMINKAINEM 8

16 [1986] 1 NWLR (pt. 220) and UNIBEN Vs. KRAUS THOMSON ORGANISATION [2007] 14 NWLR (Pt. 1055) Pg.441 to further contend that in an application for summary judgment, the claimant/applicant should state explicitly in the supporting affidavit the grounds for his belief that there is no defence to his claim and not merely make blanket depositions. Learned counsel further relied on F.M.G. vs. SANNI [1990] 4 NWLR (Pt. 683) and NISHIZAWA Vs. JETHWANI [1984] 12 SC 234 to submit that where a Defendant files a statement of Defence before or at the time of filing the affidavit to show cause why he should be let in to defend the action, the Judge cannot ignore the defence but should rather examine the statement of Defence and if necessary, rely on it in deciding whether to let the Defendant defend the action or not. Counsel also relied on MACGREGOR ASSOCIATES Vs. N.M.B. [1996] 2 SCNJ pg. 72 at 82 and F.M.G. vs. SANNI (supra) to submit that where the Defendant shows that he has a fair defence, or a reasonable ground for setting up a defence, or even a fair probability that he has a bonafide defense, he should be given leave to defend. Learned counsel further 9

17 submitted that it is not necessary for the learned trial Judge to consider whether the defence has been proved at that stage of application for leave to defend but, it will be sufficient to show that there is a triable issue or question. Counsel referred to MILES VS. BULL (1959) 1 QB 258 and MACAULAY VS. NAL MERCHANT BANK [1990] 2 NSCC 433 at 444 to submit that the lower Court erred in its finding that the totality of the facts put forward by the Appellant in its counter-affidavit did not exculpate the Appellant from liability because it offended the provisions of Order 11 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules, 2012 and occasioned miscarriage of justice. Learned counsel for the Appellant also relied on the decision in NNABUDE Vs. G.N.G. (W/A) LTD [2010] 15 NWLR (pt. 1216) Pg.365 to submit that there was no evidence before the lower Court upon which the learned trial Judge arrived at the decision because the 1st and 2nd Respondents merely repeated the averments in the pleadings in the affidavit. Learned counsel also relied on VEEPEE INDUSTRIES LIMITED Vs. COCOA INDUSTRIES LIMITED [2008] 13 NWLR (Pt. 1105) Pg. 486; OCEANIC 10

18 BANK INTERNATIONAL PLC Vs. C.S.S. LTD (supra) and ERNUWA vs. CONSOLIDATED DISCOUNTS LIMITED (Supra) in urging this Court to allow the appeal and set aside the judgment of the lower Court. On issue No. 3, this issue deals with whether the lower Court was right in law to have granted 1st & 2nd Respondents a relief not sought by the 1st and 2nd Respondents. Learned counsel for the Appellant argued that the lower Court granted to the 1st and 2nd Respondents a relief not sought by them. Counsel referred to the prayers on the Motion for summary Judgment at page 19 of the Records of Appeal and the judgment of the lower Court at page 149 of the Records of Appeal to contend that the lower Court granted a relief against the Appellant and the 2nd at 3rd Defendant at the lower Court jointly and severally. Counsel cited EKPENYONG VS. NYONG [1975] 2 SC Pg.71 at and KALIO vs. DANIEL-KALIO [1975] 2 SC Pg. 15 at 17-19; MAKANJUOLA Vs. BALOGUN [1989] 3 NWLR (Pt. 108) Pg. 192 at 206 and OLUROTOMI vs. IGE [1993] 8 NWLR (pt. 311) Pg.257 at 271 to submit that the Court cannot grant a relief not sought by the party. Learned counsel submitted that since 11

19 there was no evidence documentary or otherwise before the Court showing that the 2nd and 3rd Defendants acts of collecting sums of money from the 1st and 2nd Respondents were directed by the Appellant, the Court therefore erred in entering judgment against the Defendants jointly and severally. Learned counsel referred to NIDB vs. OLALOMI INDUSTRIES LIMITED [2002] 5 NWLR (Pt. 761.) Pg. 532; OLUFOSOYE VS. FAKOREDE [1993] 1 NWLR (PT.272) Pg. 747 and BAMGBOYE VS. UNILORIN [1999] 10 NWLR (pt.622) pg.290 to submit that the 2nd and 3rd Defendants did not act as agents of the Appellant and that the Appellant led overwhelming evidence to discharge the onus of proof placed on it. Learned counsel submitted that the lower Court erred by holding the Appellant was jointly and severally liable with the 2nd and 3rd Defendants who failed to either enter an appearance or file a statement of defence or a Counter- Affidavit to the Motion for Summary Judgment instead of entering judgment solely against the 2nd and 3rd Defendants. Counsel submitted that the lower Court having held at page 148 of the Records of Appeal that the effect of the 2nd and 3rd Defendants failure to 12

20 defend the suit is that all the averments in the Respondent's affidavit are deemed admitted; then the lower Court ought to have entered judgment solely against the 2nd and 3rd Defendants. Learned counsel urged this Court to resolve this issue in favor of the Appellant. On the fourth Issue whether or not the lower Court was right in law by applying a wrong criteria in granting the 1st and 2nd Respondents application for summary Judgment in the absence of cogent, compelling and admissible evidence upon which the decision was based, learned counsel for the Appellant contended that the lower Court applied the wrong criteria in granting the 1st and 2nd Respondents' application for summary judgment in the absence of cogent, compelling and admissible evidence upon which the decision was based. Counsel referred to Exhibits T2 and T3 and paragraph 14 of the Affidavit in support of the Motion for summary Judgment at pages 22,25 and 26 and submitted that these Exhibits do not satisfy the requirement of the law and therefore the judgment of the lower Court based thereon is a nullity. Learned counsel referred to Sections 70 and 72 (3) (a) of 13

21 the Stamp Duties Law CAP S10 Laws of Lagos State 2003 to submit that adhesive stamps must be affixed on receipts issued for monies had and received. Learned counsel submitted that the judgment of the lower Court is against the weight of evidence adduced before it and that, had the lower Court considered and given effect to Exhibit H, it would have arrived at a different decision. Learned Counsel contended that the lower Court miscomprehended the facts of this case and consequently erred in law by applying the wrong criteria in granting the application for Summary Judgment. Learned counsel urged this Court to resolve this issue in favor of the Appellant, allow the appeal and set aside the entire decision of the lower Court. Before addressing this Court on the sole issue for determination formulated in the Respondents' Brief, learned Counsel for the 1st and 2nd Respondents addressed on the Respondents Notice and urged this Court to affirm the decision of the lower Court on the ground that the 2nd and 3rd Defendants at the lower Court were agents of the Appellant and therefore agents of a disclosed principal. Counsel referred to pages 19-14

22 33; 148 and Exhibit T1 at page 24 of the Records of Appeal to submit that the Respondents made this argument before the lower Court and the Court found that the Appellant appointed and acknowledged the 2nd and 3rd Defendants as its agent in relation to the transaction in dispute. Learned counsel referred to Black's Law Dictionary, 7th Ed. at page 64; DR. TUNDE BAMGBOYE vs. UNIVERSITY OF ILORIN & ANOR [1999] 10 NWLR (Pt.622) pg. 290 at 329, para. F; NIGER PROGRESS LTD Vs. NORTH EAST LINE CORPORATION [1989] 3 NWLR (pt. 107) pg.68 at 92 and OSIGWE vs. PSPLS MANAGEMENT CONSORTIUM LTD & ORS (2009) LPELR-2807 (SC). Learned counsel further relied on JAMES vs. MID MOTORS (NIG.) CO. LTD [1978] 11 NCCC Pg. 538; at 548; TRIANA LTD Vs. POLY MARKERS LTD [2001] 5 NWLR (pt. 742) pg. 171 at 182; BUKAN GOSA Vs. B.A. INDUSTRIES [2001] 9 NWLR (Pt.716) pg.663 at 664, Para. A; EDET vs. CAMBELL LTD (2005) SC 1059 E and ASAFA FOODS FACTORY LTD Vs. ALRAINE NIGERIA LTD & ANOR (2002) LPELR-570 SC to argue that when an agent acts for a known and disclosed principal, the act is in law, the act of the principal who authorized him and that since the Appellant did not deny the 15

23 authenticity of Exhibit T1 at the lower Court, it is answerable for the manner in which its agents conducted themselves. Learned Counsel urged this Court to affirm the judgment of the lower Court on the ground that the 2nd and 3rd Defendants were agents of the Appellant, and that the land in question was offered for sale by the 2nd and 3rd Defendants on behalf of a disclosed principal. Submitting on the sole issue for determination nominated by the 1st and 2nd Respondents, which is whether in view of the facts and materials placed before the Court, the Court below was right in holding that the 1st and 2nd Respondents have fulfilled the conditions for the grant of summary Judgment in their favor, learned counsel referred to GEORGE Vs. GEORGE [2001] 1 NWLR (pt. 694) pg. 349 and PRINCEWILL Vs. USMAN [1990] 5 NWLR (pt. 150) Pg. 274 to submit that this Court will not interfere with the exercise of discretion by the lower Court unless the discretion was not judiciously and judicially exercised. Learned Counsel referred to Order 11 Rule 1 and 5 (2) of the High Court of Lagos State (Civil Procedure) Rules, 2012 and the decision in NNABUDE vs. 16

24 G.N.G. (W/A) LTD (supra) at Pg. 370, paras. F - G; U.B.A vs. JARGABA [2007] 11 NWLR (pt. 1045) pg. 247 and THOR LTD Vs. FCMB LTD [2005] 14 NWLR (pt. 945) Pg. 695 to submit that the object of summary judgment procedure is to allow, in deserving situations, speedy disposition of controversies without need for trial. Learned counsel submitted that the lower Court was right in evaluating and considering the Statement of Defence and Counter-Affidavit filed by the Appellant in coming to the conclusion that the Appellant is not exculpated from liability. Learned counsel referred to the finding of the lower Court at pages of the Records of Appeal to contend that the Appellant s right to fair hearing was not breached in any way as the lower Court in its judgment considered all the pleadings, processes and exhibits filed by both parties and that Counsel for both parties were heard orally at the hearing of the application for Summary Judgment. Counsel referred to OGUNDOYIN vs. ADEYEMI [2001] 13 NWLR (pt. 730) Pg. 403 at 422, Para. B - C; SALEH vs. MONGUNO [2003] 1 NWLR (Pt. 801) Pg. 221; NNPC vs. CLIFCO [2011] 10 NWLR (pt. 1255) Pg. 208 at 231, 17

25 Para. C, Pg. 232, paras. A - B; F.M.G. Vs. SANNI [1990] 4 NWLR (pt. 147) pg. 688 at 704; ELIKE Vs. NWAKWOALA & ORS (1984) LPELR-1118 (sc); U.T.C. (NIG.) LTD vs. PAMOTEI [1989] 2 NWLR (Pt. 103) Pg. 244; SABURI ADEBAYO VS. A. G. OGUN STATE (2008) LPELR-80 (SC) and JIPREZE vs. OKONKWO [1987] 3 NWLR (Pt. 62) Pg.737 at 744 to argue that the lower Court did not just make a blanket consideration of the facts and Exhibits but emphatically weighed the probative value of each Affidavit Evidence before it to determine if the Appellant had indeed disclosed enough facts to justify proceeding to trial of the suit. Learned counsel submitted that the Appellant was unable to convince the lower Court that there was any probative value in its evidence. Counsel referred toernuwa Vs. CONSOLIDATED DISCOUNTS LIMITED (Supra); F.M.G. Vs. SANNI (Supra); NISHIZAWA vs. JETHWANI (supra); MACAULAY vs. NAL MERCHANT BANK; HABIB (NIG.) LTD vs. OYEBANJI (1998) 13 NWLR (pt. 580) pg.71 at 78 and MACGREGOR ASSOCIATES vs. N.M.B. (Supra) to submit that in determining whether a defendant has a good defence, it is not necessary for the trial Judge to consider at that stage whether the 18

26 defence has been proved and that what is simply required is to look at the facts deposed to in the Counter affidavit or facts averred in the Statement of Defence. Learned counsel relied on the decisions in OBISANYA vs. NWOKO [1974] 6 SC 53; ABUBAKAR vs. NANA [1974] 5 SC 83; BELLO vs. EWEKA [1981] 1 SC 101; AGBONIFO vs. AIWEREOBA (1988) 1 NWLR (pt. 70) pg. 325 at 339 and N.I.S.R (NIG.) LTD VS. IBRAHIM [1975] 5 SC 62; NWOSU VS. BOARD OF CUSTOMS AND EXCISE [1988] 5 NWLR (Pt.93) pg.22 and NNEJI vs. CHUKWU [1996] 10 NWLR (Pt. 478) Pg. 265 to urge this Court to refrain from interfering with the findings made by the trial Court. Learned counsel relied on OLOGBOSERE Vs. ESENWA [1962] L.L.R 35 at 37-38; OJUKWU Vs. OJUKWU [2000] 11 NWLR (pt.677) Pg. 650 NDOMA-EGBA Vs. CHUKWUOGOR [2004] 6 NWLR (pt.869) Pg. 430, Paras. D - E; ODOGWU Vs. ILOMBO (2007) 8 NWLR (Pt.1037) Pg , Paras. E - F and METALIMPEX Vs. A-G LEVENTIS & CO (NIG.) LTD (1976) 10 NSCC Pg. 76 AT 88 to contend that since the Appellant acknowledged the authorship of Exhibit T1 upon which the Respondents advanced the sum of N43,000,000.00, the lower Court was right to have held that the 19

27 Defendants were jointly and severally liable to the Respondents for the balance sum of N24,000, Counsel relied on BANKOLE & ORS vs. EMIR INDUSTRIES LTD (2012) LPELR (CA) PG. 46, Paras A - D to further submit that Exhibit T2 was not presented to establish the contract but to demonstrate the fact that payments were made to the 2nd Defendant on the authority of the Appellant and that absence of adhesive stamp on exhibit T2 does not obviate its admissibility or relevance. Learned counsel submitted that there has been no miscarriage of justice and urged this Court to resolve this sole issue in favor of the Respondents', dismiss the appeal and affirm the decision of the lower Court. In the Reply Brief, learned counsel for the Appellant referred to Sections 2 and 15 of the Land Instruments Registration Law CAP L58 Laws of Lagos State 2003 to argue that the Respondent's argument based on Exhibit T1 is unmeritorious because the said Exhibit T1 is an unregistered Power of Attorney and therefore inadmissible in evidence. Learned Counsel argued that the lower Court did not make any reference to Exhibit T1 or to the fact that the Appellant is a 20

28 disclosed principal in its Judgment. Learned counsel relied on NIDB vs. OLALOMI INDUSTRIES LIMITED (supra); OLUFOSOYE vs. FAKOREDE (supra) and BAMGBOYE vs. UNILORIN (supra) to submit that there was no holding on an agency relationship between the Appellant and the 2nd and 3rd Defendants in the Judgment of the lower Court found at pages of the records of appeal and therefore the Appellant cannot be held liable for the decision of the Respondents to make payments to the said 2nd and 3rd Defendants, Mr. Adekunle Shobowale and Ominikum Nigeria Limited based on exhibit T1 power of Attorney, in the absence of express provisions in the power of Attorney. Learned counsel referred to RE: BRYANT; POWIS AND BRYANT DE PEUPLE (1893) AC 170 at 70 and ABINA Vs. FARHAT [1938] 14 NLR (pt. 677) pg. 65 to submit that Exhibit T1 does not contain any clause empowering the 2nd and 3rd Defendants to collect the purchase price of the Appellant's parcel of land or any money at all on behalf of the Appellant. Counsel restated the case of NNABUDE Vs. G.N.G. (W/A) LTD (Supra) to submit that the Appellants raised a triable issue for determination for which the lower 21

29 Court ought to have proceeded to trial. Learned counsel reemphasized that the Appellant's right to fair hearing was breached because the lower Court failed to consider the totality of evidence placed before it particularly the Appellant's Exhibits D and H. Learned counsel then on the authority of F.M.G. Vs. SANNI (Supra) reiterated that the lower Court wrongly applied the principles governing the grant of an application for summary judgment and therefore erred by fretting itself that a defence must first be proved before a dismissal order can be made in a summary judgment application. Learned Counsel submitted that the failure of the lower Court to give effect to Order 11 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules, 2012 occasioned substantial miscarriage of justice on the Appellants since the Exhibits D, E, F, G and H indicated that the Appellant had a triable issue for which the lower Court ought to have granted leave to defend. Learned counsel finally urged this Court to allow this appeal. RESOLUTION After a careful consideration of the grounds contained in the Notice of Appeal, the Records of Appeal, the 22

30 arguments canvassed by both counsel in their respective briefs of argument. Let me state at this point that, issues for determination must have the character of projecting succinctly and clearly the substance of the grievance expressed in the grounds of appeal requiring resolution, an Appellate Court can therefore adopt, reframe or formulate entirely new issues if the issues have substantial bearing with the grounds of appeal contained in the Notice of appeal filed by the Appellant, provided also that the Court believes that determination of the issues would serve the purpose of resolving the issues in controversy in the appeal. See: IKEGWUOHA vs. OHAWUCHI (1996) 3 NWLR pt. 435 pg. 146, andekunola Vs. CBN (2006) 14 NWLR (pt. 1000) pg.252. Premised on this basis therefore, I am of the view that the Respondent s Notice as well as the appeal can be conveniently collapsed and resolved on a sole issue for determination, which I identified as: whether the learned trial judge correctly entered summary judgment against the Appellant?" The nature and principle regarding summary judgment seems to me a settled one. The Supreme Court of Nigeria 23

31 and this Court have reiterated in a long line of judicial decisions that the summary judgment procedure is adopted by the Plaintiff to obtain judgment without full trial where the Defendant has no defense to the action filed by the Plaintiff and where the latter's case is clear and reasonable. See the decision of the Supreme Court in OKAMBAH LTD vs. SULE (1990) LPELR (SC) where KAWU, JSC (of Blessed memory) stated that the procedure is not designed to shut out a defendant who can show that there is a triable issue. In THOR LIMITED vs. FIRST CITY MERCHANT LIMITED (2005) 14 NWLR (Pt. 946) 695, the Supreme Court held as follows: The summary judgment procedure which is similar to the undefended list procedure, is designed to enable a party obtain judgment especially in liquidated demand cases, without the need for a full trial where the other party cannot satisfy the Court that it should be allowed to defend the action. Summary Judgment is resorted to or given to the Plaintiff without necessity for plenary trial of an action, it also constitutes an integral part of prompt and expeditious determination of 24

32 controversy between the contending parties without trial when there is no dispute on material facts, or inferences to be drawn from undisputed facts. In UBA & ANOR Vs. JARGABA (2007) 11 NWLR (pt. 1045) 247, the Supreme Court of Nigeria clearly set out the meaning of summary Judgment when the Court held as follows and I quote: 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 plain and straight forward, not for the devious and crafty. See also:maja vs. SAMOURIS (2002) 7 NWLR (pt.765) 78 and UTC (NIG.) LTD Vs. PAMOTEI & ORS (1989) 2 NWLR (pt. 103) 244. Now, the 1st Respondent s Application for summary Judgment was brought pursuant to Order 11 of the High Court of Lagos State Civil Procedure Rule, 2004 which is impari materia with the similar provision under the extant Rules of Court. It provides as follows: 1. Where a Claimant believes that there is no 25

33 defence to his claim, he may file his originating process, the statement of Claim, list of documents to be relied upon, the depositions of his witnesses and an application for summary judgment which application shall be supported by an affidavit stating the grounds for his belief, and a written brief in respect thereof Where a party served with the processes and documents referred to in Rule 1 of this Order intends to defend the suit, he shall, not later than the time prescribed for defence, file: (a) his Statement of Defence; (b) depositions of his witnesses; (c) list and copies of documents to be used in his defence; and (d) a counter Affidavit and a written brief in reply to the application for summary judgment. 5. (1) where it appears to a judge that a Defendant has a good defence and ought to be permitted to defend the claim he may be granted leave to defend. (2) Where it appears to a Judge that the Defendant has no good defence the Judge may thereupon enter judgment for a Claimant. (3) Where it appears to a Judge that a Defendant has no good defence to part of the claim and no defence to 26

34 other parts of the claim, the Judge may thereupon enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence. Learned Counsel for the Appellant contended that the learned trial judge failed to consider the relevant exhibits annexed to the Appellant's Counter Affidavit, before coming to the conclusion that it is liable in the sum claimed by the 1st Respondent. The relevant part of the judgment of the lower Court can be found at pages 166 to 168 of the records of appeal and it is reproduced as follows: It is the case of the claimants that in an attempt to purchase 3 acres of Land at Ibeju Lekki, they paid to the 2nd Defendant through the 3rd Defendant the sum of N43,000, (Forty-Three Million Naira) as evidenced in Exhibit T2. The consideration for which the money was paid later failed and they sought to recover their money. According to the claimants, N19,000, (Nineteen Million Naira) was refunded leaving a balance of N24,000, (Twenty-Four Million Naira) which is the subject of this application. The 2nd & 3rd Defendants were duly served 27

35 but never showed up to defend the action. The 1st Defendant contended that non realization of the contract was due to the fault of the Claimants and that the consideration of N28,000, (Twenty- Eight Million Naira) paid had been refunded to the 2nd Defendant through the 3rd Defendant and exhibited three cheques in the name of 3rd Defendant as Exhibits E, F, & G. The claimants contended that N19,000, (Nineteen Million Naira) had been refunded leaving a balance of N24,000, (Twenty-Four Million Naira). First, it is not in doubt that the sum of N43,000, (Forty-Three Million Naira) was paid to the 2nd Defendant through the 3rd Defendant as reflected in Exhibit T2 attached to the Claimants' affidavit. The 1st Defendant contended that N28,000, (Twenty-Eight Million Naira) had been paid to the 3rd Defendant for onward transfer to the claimants. It is the claimants' contention that the balance for which they are seeking judgment is N24,000, (Twenty-Four Million Naira) not N28,000, (Twenty-Eight Million Naira). Secondly, N28,000, (Twenty-Eight Million Naira) prima facie appears to 28

36 have been paid to the 3rd Defendant as reflected in the 1st Defendant's Exhibits E, F & G whether or not the said sum was in fact and in truth received by the 3rd Defendant is totally a different thing. But there is no shred of evidence to show that the sum of N24,000,000,00 (Twenty-Four Million Naira) was paid to the claimant by any of the Defendants. It is not in dispute that the land in question was offered for sale by the 1st Defendant on behalf of an undisclosed principal. The said consideration was paid in respect of the said land which consideration (i.e. N24 Million) is yet to be refunded. The totality of the facts put forward by the 1st Defendant in its 27-Paragraph counter Affidavit did not exonerate it from liability. The 2nd & 3rd Defendants did not come forward to defend the suit as they filed no process in opposition to the 21- paragraph supporting affidavit. The effect of that is that all the averments in supporting affidavit are deemed admitted... I have read the 23 paragraph Statement of Defence dated 17th day of July, 2012and filed the same day. It did not offer a good defence on the merit... The main grievance of 29

37 the Appellant against the decision of the lower Court is the failure of the learned trial judge to consider the relevant depositions, and exhibits annexed to the Appellant s Counter Affidavit, particularly Exhibits D and H; Appellant believed that if the said materials were considered properly, the Appellant would have been granted leave to defend. The facts deposed to by the 1st Respondent in the Affidavit in Support of the Motion for Summary Judgment appear to be straightforward as captured in the above reproduced excerpt from the Judgment of the lower Court. I believe it is necessary to consider the various depositions contained in the Appellant's counter Affidavit as well as the relevant Exhibits the Appellant complained were not considered by the learned trial judge in deciding whether the complaint of the Appellant herein had substance or not. The counter-affidavit is found at pages 102 to 106 of the records of appeal and the following facts were deposed to therein: 5. That it is true that the 1st Defendant offered for sale two acres of land out of its holding at Awoyaya Village sometime in 2010 and that the 2nd Defendant was never 30

38 appointed the agent or legal representative of the 1st Defendant nor any power of attorney given to him to act on behalf of the 1st Defendant That sometime in 2010 the 2nd Defendant through the appointed agent of the 1st Defendant approached the 1st Defendant on behalf of his client for the purchase of 2 acres of land put for sale at Awoyaya village. The offer price for the land per plot was N3,200,000:00 (Three Million Two Hundred Thousand Naira) and the total amount for the 2 acres was the sum of N38,400,000:00 (Thirty-Eight Million Four Hundred Thousand Naira). 8. That during the course of negotiation between the 1st Defendant and the 2nd Defendant, the 2nd Defendant did not disclose the name or the identity of his client even upon request by the 1st Defendant. 9. That I was informed by Mr. Yomi Samuel and I verily believe him that during the meeting with the 2nd Defendant it was disclosed to him that part of the land which he showed interest in was under government acquisition and that the 1st Defendant had commenced processing for the excision of the land by the Lagos State Government to the 1st Defendant. 10. That based 31

39 on the information on acquisition of part of the land, the 2nd Defendant insisted on buying the land on behalf of his client as he claimed that the client needed the land in the shape it was for his project; That it is also not true that the sum of N43,000, (Forty-Three Million Naira) was received by the 1st Defendant from the Claimants. The agreed price for the land was N3,200, (Three Million Two Hundred Thousand Naira) per plot and the number of plots in the 2 acres offered for sale was 12 plots which amounted to the sum of N38,400, (Thirty-Eight Million Four Hundred Thousand Naira) an amount lesser than what the Claimant claimed to have paid to the 2nd Defendant. 13. That sometime in December, 2010 the agent to the 1st Defendant Mr. Yomi Adeoye introduced the 2nd Defendant to the company was the agent of a prospective buyer by a letter dated 3rd December, 2010 which he also attached an offer letter of the same date from the 2nd Defendant indicating acceptance of the offered price of N3,200, (Three Million Two Hundred Thousand Naira) per plot. The two letters are attached and marked as Exhibits A and B. 32

40 14. That upon the agreement of parties on the amount payable on the land Mr. Yomi Samuel informed me and I verily believe him that he wrote a letter to the 2nd Defendant stating the agreement reached on the price and that the agreed sum be paid in the name of the parent company of the 1st Defendant that is KURAMI INDUSTRIES LIMITED. The letter is dated 3rd December, 2010 attached and marked as Exhibit C. 15. That the 2nd Defendant in accordance with the agreement on the purchase price paid the first installment of N8,000, (Eight Million Naira) on 23rd December, 2010 and subsequently paid another installment of N20,000, (Twenty Million Naira) on 1st February, 2011 into the 1st Defendant's parent company account at GTBank as deposit for the agreed sum of N38,400,00.00 (Thirty-Eight Million Four Hundred Thousand Naira) with an undertaking to pay the balance before the execution of the Deed of Assignment. The 1st Defendant s statement of Account at GTB evidencing the two installmental payments is attached and marked as Exhibit D. 16. That after the payments in paragraph 15 above the Group Manager of the 1st Defendant/Respondent still 33

41 requested to see the buyer of the land but the 2nd Defendant informed him that the buyer was not available and that he will be introduced to the company before the close of payment. 17. That immediately the balance of the agreed sum became payable the Group Manager called the 2nd Defendant to pay up the balance as promised but after repeated demands for same and persistent default on the part of the 2nd Defendant, the 1st Defendant management cancelled the sale for breach on the part of the 2nd Defendant to complete the payment. The 1st Defendant informed the 2nd Defendant of the cancellation and refunded the deposit of N28,000, (Twenty-Eight Million Naira) to the 2nd Defendant. 18. That the refund stated in paragraph 17 above were made via three GT Bank cheques numbers , and dated 16th March, 2017 in the sum of N9,000,000.00, N9,000, and N10,000, respectively and the same were handed over to the 2nd Defendant by the 1st Defendant. The copies of the cheques are attached and marked as Exhibits E, F, and G That I know that the cheques issued for the refund of the deposit of