Federal Military Government v Sani (SC 215/1989) [1990] NGSC 33 (19 July 1990)

Federal Military Government v Sani (SC 215/1989) [1990] NGSC 33 (19 July 1990)

In The Supreme Court of Nigeria

On Friday, the 20th day of July 1990

SC 215/1989

Between

The Federal Military Government of Nigeria     ......            Appellants

Attorney-General of the Federation

Minister of Internal Affairs

Director of State Security Services

And

Abache Malam Sani              .......            Respondent

Judgement of the Court

Delivered by

Muhammadu Lawal Uwais. J.S.C.

The respondent, as plaintiff, took out a writ of summons against the appellants, as defendants together with others, on the 19th day of May, 1988 in the High Court of Lagos State. The defendants entered appearance in the suit on the 24th day of May, 1988. The plaintiff filed his statement of claim on the 27th day of May, 1988 in which he stated his claims against the defendants in paragraph "7 thereof, in the following terms-

WHEREOF the plaintiff claims jointly and severally against the defendants as follows:-

(1)    A declaration that the seisure. (sic) confiscation or take over of the 5000 metric tonnes of Elephant Wheat flour (dessiu) farm fraincaise (500KG) brand of wheat flour property of the plaintiff now lying at the Apapa Port in Lagos, Lagos State by the defendants, and/or their agents, servants privies is improper, unlawful and illegal.

(2)    An order of perpetual injunction restraining the defendants, each and/or all of them. their servants, agents, privies and/or anyone claiming through or for them from seizing. interfering with the ownership or possession of the plaintiff of the said wheat flour or from selling, disposing or otherwise dealing with the said wheat flour.

 

(3)    An order compelling the defendants, each and/or all of them, their servants, agents, privies and any person or persons claiming for or through each or any or all of them to release and deliver over to the plaintiffs the said 5000 tonnes of wheat flour.

 

(4)    Against the 1st, 6th, 8th and 9th defendants, an order for inquiry into damages suffered by the plaintiff as a result of the seizure of the cargo of wheat flour and/or the transfer away from Apapa port part of the said wheat flour.

 

On the 6th day of June. 1988, the plaintiff applied by a summons for judgment, to the High Court under the provisions of Order 10 rule 1(a) and (c) of the High Court of Lagos State (Civil Procedure) Rules, Cap.52 for judgment to be entered against the defendants jointly and severally as claimed in the writ of summons and the statement of claim. The defendants who had filed a counter-affidavit whilst entering appearance on the 24th day of May. 1988 filed a statement of defence on the 13th day of June, 1988. At this stage it will suffice to simply state that the plaintiff averred in his statement of claim that before he imported the wheat flour in question he had obtained the approval of the government of his country - Niger Republic and the permission of the Federal Ministry of External Affairs and the Federal Ministry of Transport to do so. The defendants on their part, extensively alleged in their counter-affidavit (mentioned above) and statement of defence that both the approval given by the government of the Republic of Niger and the permissions given by the Nigerian Federal Ministry of External Affairs and the Federal Ministry of Transport as well as other agencies of the Federal Military Government, including the 3rd defendant were obtained by fraud and misrepresentations and in addition were forgeries.

 

At the hearing of summons for judgment the defendants relied on the averments in their counter-affidavit and their statement of defence to contend that judgment should not be entered and that they should instead be allowed to defend the action. In his judgment, the learned trial Judge Ayorinde J., (as he then was) stated as follows –

 

It is never the practice that once a statement of defence and counter-affidavit are filed, the defendants are let in to defend. It is the duty of the Judge to examine the counter-affidavit to see if it shows a good defence to all or part of the claim on the merit or to see if sufficient facts are disclosed to permit him allow the defendant to defend generally. I repeat that Order l0 is appropriate in the circumstance of this case.

 

Learned trial Judge then examined the counter-affidavit and made these observations –

 

The counter affidavit contained a lot a paragraphs offending or contravening Sections 85, 86, 87 and 88 of the Evidence Act, some are conclusions, opinions extraneous matters by way of objection or prayers or argument. Ground of belief are not shown or stated and informants are not named. When the provisions of these Sections are applied to the counter- affidavit of the 1st, 2nd, 4th and 6th respondents I am left with very few paragraphs.

 

Most importantly, the counter-affidavit alleged fraud or forgery or commission of crime. The Evidence Act Section 137 provides:-

 

1.      If the Commission of a Crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

 

2.     The burden of proving that any person has been guilty of a crime or wrongful act is ….. on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.

 

The allegation as fashioned out by the deponent of the counter-affidavit is that the permission or approval which the plaintiff/applicant exhibited in many forms and documents were wrongfully obtained or made or that they were forged. The burden of proving that they were forged or wrongfully obtained or unlawfully procured to defraud or deceive is on the respondent. The respondent failed to discharge the burden.

 

There is only one Federal Government of the Sovereign State of Nigeria. It acted with the Niger Republic through its Ministry of External Affairs as it is the case all over the world. The communication giving the approval to tranship wheat flour through Nigerian Port is within the powers of the Federal Government of Nigeria notwithstanding the banning of its importation into Municipal Nigeria.

 

There is a Trade Agreement (Commercial). The list is not exhaustive. The Ministry of External Affairs knows the Laws of Nigeria and ignorance of the Laws of Nigeria cannot be pleaded by it. In fairness, the Ministry of External Affairs is not claiming such ignorance. It stated that the Appropriate Authority has granted permission. Udo Udoma J.S.C., has settled the point long ago that in a Situation like this, where a court has to decide whether the approval was genuine or otherwise, or where one situation alleges that a crime has been committed by a citizen and the other points to the contrary, the court should hold the contrary view. Unless there are proof beyond reasonable doubt no court will doubt that the Federal Government permitted the applicant to tranship wheat flour with other item through Nigerian Ports.

 

The permission were given before the importation and it shows honest and straight forward dealing. The Decree No.1 of 1988 Section 10(2) recognised International Agreement. It is important to recognise that the Decree No.1 of 1988 deals with import into Nigeria. it is not concerned with goods in transit through our ports. It is not expressly prohibited or provided that articles in the Decree No.1 of 1988 should not be transhipped to another country. The Decree did not expressly prohibit transhipment. The applicant took the best course to seek permission which was granted. The permission granted have not been withdrawn or cancelled. They remained valid.

 

The learned trial Judge concluded as follows –

 

There is no good defence on the merit to this action. The 48 paragraphs counter-affidavit did not disclose any facts which should enable me to permit the defendants/respondents to defend. The defence which I read over and over is a sham. The applicant had the permission of the Federal Government of Nigeria to use Nigeria (sic) Ports for the transhipment of his goods including the wheat flour. It is not transported into Nigeria. Like all other items he wanted to tranship, they do not attract import duties, because Nigeria is not their destination. If they are lost, they are lost in transit.

 

Finally, the defendants/respondents have failed to satisfy me that they have a good defence on the merit. They did not disclose such facts that would entitle them to defend generally. I therefore grant leave to plaintiff/applicant to enter judgment against them as prayed." (Italics mine).

 

It is pertinent to mention that in the procedure under Order 10, in determining whether a defendant has a good defence to the action brought against him or he has disclosed such facts as may be deemed sufficient to defend the action, it is no, necessary for the trial judge to consider at that stage whether the defence has been proved. What is required is simply to look at the facts deposed to in the counter-affidavit or indeed the facts averred in the statement of defence, where applicable, and see if they can prima facie afford a defence to the action. In that regard a complete defence need not be shown. It will suffice if the defence set up shows that there is a triable issue or question or that for some other reason there ought to be a trial. Therefore, the issue that whether the defence is proved or not can only arise where the trial Judge has given the defendant the leave to defend so that the proof is an Issue for determination after the hearing of evidence and at the time of evaluating the totality of the evidence adduced by the defendant. It is clear, therefore, that the learned trial Judge misdirected himself at the stage he considered the applicability of Section 137 of the Evidence Act on whether the defendants had proved the defence they had intended to set up. It was not a question of proof but that of whether the defendants had raised a substantial question of fact or defence which prima facie ought to be tried - Saw v. Makim (1880) T.L.R.72.

 

Being dissatisfied with the judgment of the learned trial Judge, the defendants appealed against it to the Court of Appeal. One of the three issues for determination by that Court, which were formulated by the defendants, was –

 

3.      Whether on the facts disclosed in the counter-affidavit and statement of defence, the applicants did show sufficient defence to the action?"

 

In the lead judgment of the Court of Appeal, which was read by Akpata, J.C.A. (as he then was) and with which Babalakin and Kalgo, JJ .C.A., agreed the Court of Appeal referred to and approved the rejection by the learned trial Judge of some of the paragraphs of the defendants' counter-affidavit on the ground that the rejected paragraphs offended the provisions of sections 85, 86, 87 and 88 of the Evidence Act. The Court of Appeal considered paragraphs l to 3, 5 to 8, 33 and 48 of the Counter-affidavit to be valid as they did not offend the said provisions of the Evidence Act. The accepted read as follows -

 

1.     That I am an officer of the State Security Services of 15 Awolowo Road, Ikoyi, Lagos and took part in the investigation of this case which took me to Ministry of External Affairs, Transport, Apapa Ports, Tin Can Island with the plaintiff and all relevant parties.

 

2.    That by virtue of my position I am familiar with the facts of the case.

 

3.    That I have the consent and authority of the 1st, 2nd, 4th and 6th defendants to swear to this affidavit ……..

 

5.     That approval for transhipment/transit of goods to land locked neighbouring West Africa Countries through Nigerian Ports is never given in respect of prohibited/commercial goods, owned by private businessmen of such land locked neighbouring countries.

 

6.      That in the case of relief materials, it is the policy of Government to grant approval to the United Nations Relief Organisation, the United States of America, member countries of the European Economic Commission (EEC) and France to Use the Ports of Calabar & Port-Harcourt only for the transhipment of such relief materials to Tchad & Niger Republic.

 

7.     That such approval is never meant to apply to commercial goods owned by private businessmen of such land locked neighbouring countries.

 

8.     That the plaintiff Abache Malam Sani, citizen of Niger Republic and a Maradi based businessman imported into Nigeria 5,000 metric tonnes of wheat flour a prohibited goods embarked on prohibited item in Nigeria on or about the 31st of March, 1988 on board MV YINKA FOLAWIYO.

 

33.    That the Legal adviser to the State Security Services Mr. Ibrahim sani informed me and 1 verily believe that the note-verbale No.791/88 dated 11th of March, 1988 (Exhibit E) is void in that the 3 most senior officials in the relevant Department of the Ministry of External Affairs who by virtue of their positions ought to have authorised the issuance of the note-verbale (Exhibite E) have denied knowledge or authorisation for its issuance and that the Ministry of External Affairs has no power to give such approval.

 

48.   That I swear to this affidavit in good faith.

 

With regard to these paragraphs of the counter-affidavit the Court of Appeal held, per Akpata, J.C.A. thus –

 

These paragraphs are not sufficient to establish that the defendants have a good defence to the action on the merits. They also do not disclose such facts as may be deemed sufficient to entitle them to defend the action generally. Besides, paragraphs 7 and 33 are either conclusions drawn from the information received or legal argument which section 86 of the Evidence Act forbids. Section 86 states that an affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion. (italics mine).

 

Having filed a statement of defence in the High Court counsel for the defendants contended before the Court of Appeal that the learned trial Judge ought to have considered the defence set up therein but that he did not. After considering the decisions in the following cases - Nishizawa Ltd. v. Jethwani (1984)12 S.C.234 at pp.267 and 278 - 279; Societe Generale Bank Ltd. v. Shasanya (1987) 4 N.W.L.R. (Part 66) 676 and National Bank of Nigeria Ltd. v. Weide & Co. Nigeria Ltd. & Ors., Court of Appeal suit No.CA/L/50/88, (unreported) judgment delivered on the 9th day of February, 1989, Akpata J.C.A. (as he then was) observed thus -

 

I have just stumbled across a recent decision of the Supreme Court in the latest issue of the Nigerian Weekly Law Reports which supports Mr. Omitade's contention. It is the case of U. T. C. (Nigeria) Ltd. v. Chief J.A. Pamotei & Ors. (1989) 2 N.W.L.R. (Part 103) 244. In it the Supreme Court, it seems, Unequivocally stated that where a statement of defence had been filed which discloses a valid defence instead of an affidavit as prescribed under Rule 3(a) of Order 10, the Court ought to act on such defence and allow the defendant - to defend the action. In effect the Supreme Court is saying that the unambiguous requirement of Rule 3(a) that the defendant may show cause against the application by affidavit or to be examined upon oath should be ignored in the interest of justice.

 

The learned Justice of Court of Appeal reluctantly came to the following conclusion –

 

I have no alternative but to hold that the statement of defence filed by the relevant defendants in this case ought to have been considered. It is therefore against the background of the decision in U. T. C. (Nigeria) Ltd. v. Pamotei (supra) that I now consider this appeal. I must say that although the learned trial Judge reproduced the relevant portions of the statement of defence of the 1st, 2nd, 4th and 6th defendants in his judgment at pages 402-405 of the record of appeal, he did not appear to have considered them in arriving at his decision. Indeed, the learned trial Judge said at page 409 of the records that "a statement of defence does not satisfy the requirements under Order 10. A statement of defence should not be elevated to the status of an affidavit which is on oath and whereas the statement of defence is hearsay produced by counsel (see Shodipo v. Lamminkainen & Ors. (1986) N.W.L.R. (Pt. 15) at 220). (Italics mine).

 

Learned Justice of Court of Appeal then decided to have a close look at statement of defence in order to see if the defendants had shown that had a defence to the action. He considered paragraphs 4, 8 and 13 as the essential, of all the paragraphs in the statement of defence, setting up defence of the defendants to the action. After quoting the paragraphs, in question he held as follows –

 

I have earlier in this judgment dealt with the role played by the Ministry of External Affairs. Any wrong doing by that Minis-try in usurping the function of another Ministry cannot be the basis for confiscating the wheat flour, regardless of the averment of fraud. As rightly pointed out by Professor Adesanya, no offence has been committed under Decree No.1 of 1988 or under Section 43 of 1958 Act in bringing the wheat flour in transit or for transhipment.

 

It is not the case for the defence that the goods were seized for the wrong use of a Nigerian Port by fraud. They were seized because they were said to be prohibited goods. I therefore do not see anything in this statement of defence to show that the defendants have a good defence to the action on the merits or that such facts are disclosed in the statement of defence as may be deemed sufficient to allow them to defend the action generally. On the pleadings therefore, it would have amounted to a useless exercise for the learned trial Judge to have allowed the defendants to defend the action.

 

The appeal before us is against that judgment for the Court of Appeal. Four issues for determination arising from the three grounds of appeal filed by the defendants were identified by the defendant. They are -

 

(1)    Whether the learned Justices of the Court of Appeal were right to have held that the requirement for the initiation of summons for judgment under Order 10 of the High Court of Lagos State (Civil Procedure) Rules, 1972, had been met, in the face of obvious irregularities in the procedure adopted by the plaintiff/respondent and on the facts disclosed?

 

(2)    Can the allegation of fraud contained in the defendants/appellants counter-affidavit and Statement of Defence be held not to have been proved merely on affidavit evidence and without calling for further evidence in the face of the averments in the affidavits of both parties?

 

(3)    Were the defendants under an obligation to call every probable witness to depose to an affidavit, in other (sic) to show a good defence under Order 10 of the Lagos State High Court (Civil Procedure) Rules, 1972?

 

(4)    Whether on the facts disclosed in the Counter-Affidavit and Statement of Defence, the appellants did show sufficient defence to entitle them to defend the action?"

 

Of these questions, I regard question No.4 as the most crucial since the appeal by the defendants can fall or stand by its determination. Different questions for determination have been drafted on behalf of the plaintiff but none of the four questions so drafted correspond with the defendants' question No.4. The reply to the defendants' argument on their question No.4 can only be found in the plaintiff's brief of argument on page 29 thereof under the heading - "Summary of Arguments." Learned counsel for the plaintiff also touched briefly on the issue in his oral argument. What then is the contention of the defendants? Learned counsel for the defendants canvassed that paragraphs 5, 6, 7, 8, 11, 25, 33, 34, 37, 41, 42, 45 and 46 of their counter-affidavit disclose triable issues and so also their statement of defence. He argued that both the counter-affidavit and the statement of defence raise substantial questions of law on the interpretation of the Trade Agreement between Nigeria and the Republic of Niger which the plaintiff relied upon, Customs and Excise Tariff (Consolidation) Decree, 1988 No.1 of 1988 and Customs and Excise Management Act, 1958 as amended in 1959. Re concluded his oral argument by submitting that the defendants had disclosed good defence in both their counter-affidavits and statement of defence and urged that the appeal be allowed and the case be remitted to the High Court to be heard on the merits.

 

The summary in the plaintiff's brief of argument which alludes to the defendants' argument on issue No.4 in their brief reads as follows:

 

1.     ………

 

2.     The complaint of the appellants is that the lower courts ought to have allowed them proceed to trial to prove fraud so as to show that their consent has been fraudulently obtained.

 

3.     The respondent's case is that since the transhipment of the wheat flour is not prohibited, the consent of the appellants is irrelevant and a fortiori proof that the consent has been fraudulent obtained is also irrelevant.

 

4.     In determining whether the appellants have made an arguable defence, a dominant factor is the relevance of the defence and no defence is more unarguable or untriable than an irrelevant defence, therefore the lower courts were right in refusing to allow the appellants to proceed to trial in order to prove an irrelevant defence.

 

In his oral argument, learned counsel for the plaintiff stressed the point stating that an arguable defence must be a relevant defence. The thrust of the defendants' defence was that no consent or approval was obtained but in this case no consent or approval was necessary. The defence relied upon by defendants is not supported by law. Both the lower courts had found that no offence had been committed by the plaintiff in importing the wheat flour in question into Nigeria.

 

Now Order 10 rule 1(a) of the High Court of Lagos State (Civil Procedure, Cap.52 reads –

 

1 (a)  Where the defendant appears to a Writ of Summons specially indorsed with or accompanied by a statement of claim under Order 3, rule 4, the plaintiff may on affidavit made by himself or by any person who can swear positively to the facts, verifying the cause of action and the amount claimed (if any liquidated sum is claimed), and stating that in his belief there is no defence to the action except as to the amount of damages claimed, if any, apply to a Judge in Chambers for liberty to enter judgment for such remedy or relief as upon the statement of claim the plaintiff may be entitled to. The Judge thereupon, unless the defendant satisfy him that he has a good defence to the action on the merits or shall disclose such facts as may be deemed sufficient to entitle him to defend the action generally, may make an order empowering the plaintiff to enter such judgment as may be just, having regard to the nature of the remedy or relief claimed.

 

The purpose of Order l0 is to enable a plaintiff to obtain summary judgment without trial if the plaintiff can prove his claim clearly and if the defendant is unable to set up a bona fide defence or raise an issue against the claim to be tried - see Sodipo v. Lemminkainen OY (supra) at p.230 and U.T.C. (Nig.) Ltd. v. Pamotei (supra), at p.283. The procedure by which the defendant may show cause is prescribed by Rule 3 of Order 10, which states –

 

3(a)    The defendant may show cause against such application by affidavit, or the Judge may allow the defendant to be examined upon oath.

 

(b)    The affidavit shall state whether the defence alleged goes to the whole or to part only, and (if so) to what part of the plaintiff's claim.

 

(c)    The Judge may, if he thinks fit, order the defendant, or in the case of a corporation, any officer thereof, to attend and be examined upon oath, or to produce any lease, deeds, hooks or documents or copies &;f or extracts therefrom.

 

It follows from these provisions that the defendant is primarily to show cause by swearing to a counter-affidavit but secondly by being examined on oath if the Judge deems it fit. In addition it is settled by this court in two cases that although the defendant is not obliged to file statement of defence before or at the time of filing the counter-affidavit to show cause why he should be let in to defend the action, if, in fact, he so filed the statement of defence, then, the Judge in determining whether to allow him to defend the action, cannot, in the interest of justice, ignore the defence raised in the statement of defence. In other words where both the counter-affidavit and the statement of defence have been filed by the defendant, the Judge is obliged to examine the statement of defence and if necessary to rely on it in deciding whether to let the defendant to defend the action - See Nishizawa Ltd. v. S.N. Jethwani, (supra) and U. T. C. (Nig.) Ltd. v. Pamotei (supra).

 

In the present case, the defendants had filed both their counter-affidavit and statement of defence before the plaintiff's summons for judgment to be entered came up before the learned trial Judge, who made a passing remark about the statement of defence by rightly holding that the statement of defence was not a substitute to a counter-affidavit. The trial Judge rejected the defendants counter-affidavit on the ground that it offended the provisions of the Evidence Act and omitted to examine the defence contained in the statement of defence. The Court of Appeal disagreed with the learned trial Judge that all the material paragraphs of the counter-affidavit were inadmissible. It held that paragraphs 1 to 3, S to 8, 33 and 48 thereof, which have been quoted above, were admissible. But the Court of Appeal held the view that that notwithstanding all the averments in the counter-affidavit did not establish a good defence to the action nor disclose facts that might be deemed sufficient to entitle the defendants to defend the action generally. It, however, considered the statement of defence and remarked that only paragraphs 4, 8 and 13 thereof were essential. These paragraphs read as follows –

 

4.      The defendants admit paragraph 17 of the Statement of Claim only to the extent that the cargo of wheat flour imported by the Plaintiff was seized by the Department of Customs and Excise but deny that any approval was given for the importation of the wheat flour which is a banned commodity in the country."

 

13.   The defendants state that the purported "approval" referred to above was not authentic, it was fraudulently obtained and the Ministry of External Affairs has no power to give such approval as the said Ministry is not the appropriate authority to approve the importation into Nigeria of banned goods or any goods at all.

 

(a)    The Federal Military Government policy on the transhipment/transit of goods through Nigerian Ports dates back to 1985 when the then Head of State, Major-General M. Buhari (rtd.) in response to a request by the Secretary-General of the United Nations Organisation granted approval for the use of the Calabar and Port Harcourt Ports by the U.N. for the purpose of discharging relief materials for onward transportation to the land-locked Republic of Niger and Chad.

 

(b)    The said approval does not and was never intended to cover commercial goods owned by private businessmen of the land-locked neighbouring countries.

 

(c)    The Ministry of External Affairs which purportedly gave "approval" for the discharge of the banned cargo, is only concerned with relief materials and diplomatic goods and all it is expected to do is to play an intermediary role between the respective Embassies of the beneficiary countries and the Federal Ministry of Transport which is vested with the power to grant such approvals.

 

(d)    There has never been any communication between the Ministry of External Affairs and the Federal Ministry of Transport in respect of the goods in question.

 

(e)     The note-verbale is null and void in that the 3 most senior officials in the relevant Department of the Ministry of External Affairs who by virtue of their positions ought to have authorised the issuance of the note-verbale deny any knowledge or authorisation of the said Note.

 

(f)    The plaintiff connived with officials of the Federal Ministry of Transport with a view to getting the purported approval changed from Calabar/Port Harcourt ports to Apapa port by instructing Umarco (Nig.) Limited to formally apply to the Federal Ministry of Transport for permission to use Apapa port by letter Ref. No.ODA/S/SH/673 dated 23rd February

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