Ben Nwankwo v. Kay-Kay Construction Limited

This is an Appeal against the majority decision of the Court of Appeal, Enugu Judicial Division delivered on the December 8, 2014. Coram: Amiru Sanusi, JCA (later JSC), Emmanuel Akomaye Agim, JCA (now JSC) and Misitura Bolaji-Yusuff, JCA (dissenting) affirming the decision of the High Court of Enugu state as contained in the

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judgment of Hon. Justice A. Umezurike, C.J. delivered on November 16, 2012 entering summary judgment to the tune of N200,000,000.00 (Two Hundred Million Naira) in favour of the Respondent, on the ground that the Appellant’s Notice of Intention to Defend the suit brought on the Undefended List failed to disclose any defence on the merit.

The Respondent commenced this action at the trial High Court vide an Undefended List/Summary Judgment Procedure filed on July 12, 2012, for a liquidated money sum of N200,000,000.00 (Two Hundred Million Naira only), in respect of a friendly loan granted to the Appellant.

A summary of the Respondent’s case is that the Appellant applied to the Respondent company for a soft loan of Two Hundred Million Naira to enable him execute a contract. This ‘Loan Application’ by the Appellant was attached as Exhibit A. Upon receipt of the loan application, the Respondent made an offer to the Appellant granting him the loan sum to be repaid over a span of 4 years in N50,000,000 (Fifty Million Naira) instalments – Exhibit B. The offer was accepted by the Appellant in Exhibit C, consequent upon which the parties entered into a loan agreement as evinced in Exhibit D. As security for the loan, the Appellant had submitted to the Respondent four (4)

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signed but undated cheques of N50,000,000.00 (Fifty Million Naira) each. These were admitted in evidence as Exhibits E1-E4. However, when the time agreed for the repayment of the loan came, the Appellant failed to service the debt, prompting the Respondent to write two separate demand letters – Exhibits F & G, which were both ignored by the Appellant, resulting in the Respondent approaching the trial Court for redress.

In response to the Suit, the Appellant on August 13, 2012 filed a ‘Notice of Intention to Defend’ the suit. In his ‘Notice of intention to Defend’, the Appellant stated that he was not indebted to the Respondent in any way and had not obtained any loans from it. He went further to contend that if the veil of incorporation is lifted, one would find that the Directors of the Respondent company are Chief Christian Uba, his wife and daughter. He stated that Chief Christian Uba, as the de facto leader of one of the factions of their Political Party – PDP, in Anambra State, had promised to sponsor him and some others for the elections into the National Assembly in April, 2011. However, that after they won the primary elections, Chief Christian Uba invited him and some other candidates to a meeting and threatened to withdraw their sponsorships unless they signed

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the documents which he presented, i.e. the signature page of Exhibit D. He alleged that the Respondent got him to sign the documents under duress and fraud. He attached Exhibits 1, 2, 3, 4, 5, 6, 7, 8 & 9 to his Notice of Intention to defend. Exhibits 1 to 4 are the Respondent’s incorporation documents; Exhibit 5 is the Appellant’s serialized cheque stub, while Exhibits 6-9 are a letter written by the Appellant to the Respondent on May 12, 2012; CTC of a judgment; a letter forwarding the list of successful aspirants to the National Chairman of PDP and the Appellant’s suit against the Respondent respectively.

The learned trial Judge after reviewing the case of the parties, held that the Appellant did not disclose any defence on the merit in his ‘Notice of Intention to Defend the Suit’. His lordship therefore entered summary judgment in favour of the Respondent to the tune of N200,000,000 (Two Hundred Million Naira) claimed.

Aggrieved by the Judgment, the Appellant approached the Court of Appeal (Court below) which agreed with the Appellant that the trial Court failed to appraise the case of the parties in the Suit, as it merely imported its assessment and reasoning in a sister-case into the instant case. The Court below then proceeded to assess the case

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of the parties. Upon due evaluation of the evidence, it held that the Notice of Intention to Defend failed to disclose a defence on the merit, and so no miscarriage of justice was occasioned against the Appellant by the failure of the trial Court to appraise the case of the parties herein. Consequently, the Court below by a majority decision, affirmed the Judgment of the trial Court.

Still dissatisfied, the Appellant has now approached this Court to challenge the decision of the Court below via an Amended Notice of Appeal filed on 20/11/2019 containing 21 (twenty-one) Grounds of Appeal.

ISSUES FOR DETERMINATION:

The Appellant’s Amended Brief of Argument filed on 20/11/2019 but deemed duly filed on 05/03/2024, was settled by Tobechukwu Nweke, Esq. Therein, the Appellant raised 9 (nine) issues for determination, which were adopted by the Respondent in its Amended Brief of Argument settled by Anone A. Usman, Esq. and filed on 14/01/2022, deemed on 05/03/2024. The issues are reproduced as follows:

1. “Whether having regard to the endorsement on the Writ of Summons filed at the trial court indicating that the Writ was

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issued by a law firm, the trial court was not robbed of its jurisdiction to entertain the Respondent’s suit which was initiated by an incompetent process.”

2. Whether having regard to the averments in the Respondent’s Affidavit in support of the Writ of Summons filed at the trial Court, the Respondent disclosed any cause of action over the alleged loan of 200,000,000.00 to justify the judgment of the Court of Appeal which upheld the monetary judgment of the trial Court in that sum.
3. Whether, having regard to the facts and circumstances of this case, the learned Justices of the Court of Appeal who delivered the majority decision were right in embarking on first-instance evaluation of evidence in this case when the trial court failed to do any evaluation of evidence.
4. Whether the learned Justices of the Court of Appeal were right in their majority decision when they held that the Appellant did not disclose a case worthy of transfer to the general cause list and that the failure of the trial court to evaluate the affidavit evidence before it did not occasion any miscarriage of justice.
5. Whether, having regard to the vitiating elements viz. duress, undue influence, threat, fraud and illegality raised in the Appellant’s defence as circumstances under which the alleged loan agreement was made, the learned Justices of the Court of Appeal were right in their majority decision when they failed to

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consider and adjudicate on these vitiating elements.

6. Whether having regard to the way and manner the Respondent’s Exhibit D was executed, the learned Justices of the Court of Appeal were right in their majority decision when they relied on the said Exhibit D in agreeing with the trial Court that there was a loan contract between the Appellant and Respondent.
7. Whether the learned Justices of the Court of Appeal were right in their majority decision when they held that the Appellant raised two contradictory defences to the Respondent’s claim.
8. Whether the learned Justices of the Court of Appeal were right in their majority decision when they held that the Appellant did not make a denial or rebuttal of Exhibits A, B and C and that Appellant’s allegation of fraud, duress and illegality of the Respondent’s exhibits were barren, baseless and an afterthought.
9. Whether the learned Justices of the Court of Appeal were right in their majority decision when they held that Exhibit 9 was an abuse of court process.”

Upon a calm evaluation of the issues raised for determination, it is clear that while issue one seeks to challenge the jurisdiction of the trial Court to have determined the case, issues two to nine query the verdict of the Court below. I am thus of the strong conviction that this appeal can be aptly resolved on the following two clear issues:

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1. Whether having regard to the endorsement on the Writ of Summons, the trial Court was imbued with jurisdiction to entertain the Respondent’s suit.
2. Whether or not the Court below was right to have held as it did and to uphold the decision of the trial Court.

I shall thus proceed to determine this appeal based on these two issues, taking into cognizance the entire arguments raised in the parties respective Briefs of Argument and the Reply Brief filed on 13/12/2019.

ISSUE ONE: Whether having regard to the endorsement on the Writ of Summons, the trial Court was imbued with jurisdiction to entertain the Respondent’s suit.

On this issue, it is the submission of learned Counsel for the Appellant that the trial Court had no jurisdiction to have tried this case, as the Respondent’s Writ of Summons is endorsed to have been issued by Messrs. Taiwo Abe & Co., who is not a legal practitioner, but a law firm. He thus urged on this Court to strike out the Respondent’s case at the trial Court.

Contrary wise, learned Counsel for the Respondent submitted that a look at the Writ of Summons discloses that it was properly issued by the Registrar whose signature is prominently displayed on the Writ,

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which Writ was signed and endorsed by Taiwo Abe Esq., Counsel for the Respondent. By this, it is evident that the Writ was proper before the trial Court.

RESOLUTION:

This issue is not amenable to any undue exertions due to its straightforward characteristic. The Writ of Summons before the trial Court is contained at pages 23-24 of the Record of Appeal. At the end of the first page of the Writ (page 23), it is dated and signed by the Registrar, one V.A. Aneke, Esq. At the bottom of the next page of the Writ, it is clearly evident that it is signed by Taiwo Abe Esq., (Respondent’s Counsel), a point that was even conceded to by the Appellant’s Counsel. I thus find it very difficult to appreciate the contention of the Appellant on this issue.

There is no gainsaying that a Writ of Summons is an originating process and its competence gives the Court the jurisdiction to look into the suit before it. It is fundamental as it is the first process to be filed in the Court by a plaintiff or claimant to invoke the jurisdiction of the Court. See Abbas V Tera (2013) 2 NWLR (Pt. 1338) 284; WAEC V Akinkunmi (2008) 9 NWLR (Pt. 1091) 151. Once properly issued and signed, it invokes the jurisdiction of the court. In this case, it is

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plainly obvious that the Writ of Summons which initiated this suit at the trial Court was properly issued by the Registrar and duly signed by the Respondent’s Counsel. It is settled that the essential contents of a Writ of Summons are the requisite endorsements that by law and/or the applicable Rules of Court, must be contained thereon. Once it is evident from the Record that all the necessary endorsements are contained on the Writ, then it is proper. See Aribisala V AMCON (2025) LPELR-80536(SC). Upon due examination of the extant Writ of Summons in the printed Record of Appeal, I find that all the obligatory endorsements are contained therein, in particular, the name and signature of the Plaintiff’s Counsel. Without much ado, this issue is therefore resolved against the Appellant, and in favour of the Respondent.

ISSUE TWO: Whether or not the lower Court was right to have held as it did, and to uphold the decision of the trial Court.

Under this issue, learned Counsel for the Appellant has argued that a look at the suit of the Respondent before the trial Court reveals that the Respondent had no cause of action. He contends that a cause of action crystallises when a legal right becomes enforceable. However, that in this case by the claim of the Respondent, the amount that had

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fallen due as at the date of the institution of the action was only the sum of N50,000,000.00 (Fifty Million Naira), and not the sum of N200,000,000.00 (Two Hundred Million Naira) claimed by the Respondent.

Counsel submits that upon a dispassionate evaluation of the evidence of the parties, it is obvious that the affidavit evidence of the parties conflicted on several material issues. Therefore, there was a need to call witnesses to lead oral evidence to resolve the conflicts, and this, the trial Court failed to do when it refused to transfer the suit to the General Cause List. Building on this, learned Counsel also submits that the Court below thereafter usurped the powers of the trial Court when it embarked on a first instance evaluation of evidence after finding that the trial Court failed to do so. He argued that the proper thing for the lower Court to have done was to have remitted the suit to the trial Court for re-trial.

The Appellant further submits that the purported loan agreement by the Respondent is a sham, as he did not borrow any money whatsoever from the Respondent. Rather, that Exhibits A, B, C & D are products of fraud, illegality, intimidation, duress and deceit. He therefore contends that all these averments in the affidavit raised

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triable issues and a good defence which ought to have impressed the minds of the Justices of the Court below to have remitted the case to the trial High Court for re-trial. Contending that the entire case of the Respondents amounts to sheer illegality and fraud which is contrary to public policy, he referred to the cases of Fasel Services Ltd. V N.P.A. (2009) 9 NWLR (Pt.1146) 400, 416; F.A.T.B Ltd. V Partnership Inv. Co. Ltd. (2003) 18 NWLR (Pt.851) 35, 75.

Further, learned Counsel contends that the case of the Appellant is mounted on the exceptions to Section 128(1) of the Evidence Act and so, that the Court below was wrong to have glossed over the decision of the trial Court which found that the exceptions in Section 128(1) (supra) do not apply to the facts of this case.

Additionally, learned Counsel argued that Exhibit D, which was the major consideration of the trial Court in its decision that there was a loan agreement between the parties, was not properly executed. He contends that the document failed to meet the requirement of Section 77 of the Companies and Allied Matters Act, as the person who signed on behalf of the Respondent company did not disclose his designation or the capacity in which he signed on behalf of the Company.

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Finally, Counsel argued that the Appellant’s suit in respect of this issue is not an abuse of court of process. He submitted that a party is entitled to institute his own suit if the suit against him does not adequately cover his own case. That the existence of the Appellant’s case made it necessary for the Respondent’s case to be transferred to the General Cause List to be consolidated with the Appellant’s suit for a holistic trial of all the issues involved.

In response, learned Counsel for the Respondent submitted that the entire case of the Respondent in its suit before the trial Court disclosed the grievance and legitimate grouse of the Respondent which is actionable. Thus, that the Court should disregard the Appellant’s contention that the Respondent had no cause of action.

On the contention of the Appellant that the trial Court did not evaluate the evidence in the case, the Respondent submits that there were four suits commenced at the trial Court based on the same set of facts. In fact, even the Appellant’s Counsel had, at pages 156-157 of the Record of Appeal, adopted his submissions in one of the sister-cases, to apply to the instant case. Thus, it is surprising that this same Appellant will now then turn around to raise eyebrows at the trial Court applying the evaluation of facts done in the sister-case

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to this case, when the facts and circumstances therein are on all fours. Counsel further argued that, assuming but not conceding that the trial Court failed to evaluate the facts of this case, then that the evaluation done by the Court below was properly done and suffices in light of Section 15 of the Court of Appeal Act, 2004.

Learned Counsel also submits that the decision not to transfer the suit to the General Cause List is on firm ground as the Appellant’s Notice of Intention to Defend failed to show a good defence to the claim. He argues that the bare allegations of duress, fraud and deceit made by the Appellant were not well thought-out as there is no record of the Appellant taking any steps to report the alleged fraud or duress to the relevant authorities since its alleged occurrence two years prior to the institution of the suit. They only sought to raise it when the suit was already in Court.

On the signing/execution of Exhibit D, learned Counsel contended that the Appellant had cited Section 77 of the Companies and Allied Matters Act out of context, as all that the provision requires is that an authorised officer of the company can sign on behalf of the company. In this case, the Respondent on whose behalf the loan agreement was signed, has not impugned the signature or authority

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of the person who signed the document. So, the Appellant cannot purport to complain against the Respondent’s internal affairs when the Respondent has not in any way refuted the signature.

Finally, Counsel submits that the suit in the Appellant’s Exhibit 9 was filed to support the contention of the Appellant that Exhibit D was obtained by fraud and duress, and was filed on the same day as the Appellant’s Notice of Intention to Defend, contending the same issues. It therefore amounted to an abuse of court process.

RESOLUTION:

Starting with the first issue, the Appellant’s Counsel contends that the Respondent did not have a cause of action, as a cause of action only crystallises when a legal right becomes enforceable. That in this case by the claim of the Respondent, the amount that had fallen due as at the time of the institution of the suit was N50,000,000 (Fifty Million Naira), and not N200,000,000 (Two Hundred Million Naira) as claimed by the Respondent.

From the Record of Appeal, the Respondent in instituting the action filed on the Undefended List, attached several exhibits to its affidavit in support of the suit in urging the trial Court to enter summary judgment in its favour. One of such Exhibits is ‘Exhibit F’, a demand

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letter written on 25/5/2012 by the Respondent’s Solicitors to the Appellant demanding for a repayment of the loan sum. Excerpts from the letter state as follows:

“As a result of your failure to commence the repayment of the friendly loan extended to you by our client, our client is invoking clause 6 of the loan agreement executed by your good self and our client. By this letter you are hereby given (1) one month notice to pay back in full the loan facility advanced to you by our client. Please be informed that failure to comply with this demand will leave us with no other alternative than to proceed against you in a court of law; and bear in mind that according to clause 7 of the earlier mentioned loan agreement, you will bear the cost of any necessary legal steps taken to recover this loan from you. It is our hope that you will comply with this demand notice timorously to avoid any embarrassment.” (Emphasis supplied)

The effect of this letter is that, as at the time of the institution of the suit, what had fallen due was not just the sum of N50,000,000 as argued by the Appellant. Rather, by the express agreement of the parties in clause 6 of Exhibit F, the entire loan sum of N200,000,000 claimed by the Respondent was due and owing.

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The second contention of the Appellant is that the Court below usurped the powers of the trial Court when it embarked on a first instance evaluation of the evidence after it found that the trial Court failed to properly evaluate the evidence of the parties. Learned Counsel argued that the proper thing for the Court below to have done would have been to remit the suit to the trial Court for trial, especially as the affidavit evidence of the parties conflicted on several material issues which required the calling of oral evidence to resolve the conflicts. However, the law is that when there is a challenge questioning the improper evaluation or the non-evaluation of evidence led before it on the records, as was raised by the Appellant at the Court below, the appellate Court is in as good a position as the trial Court to carry out its own evaluation and make what is, in its view, the correct finding on the evidence. See Fatai V State (2013) 10 NWLR (Pt. 1361) 1, 21 SC; Abiodun V State (2013) LPELR-20343(SC); Idagu V State (2018) LPELR 44343(SC); Onyekwuluje V Animashahun (2019) LPELR-46528(SC).

In the case of Bassil & Anor V Fajebe & Anor. (2001) LPELR-757(SC), it was held that an appeal to the Court of Appeal from the High Court is by way of rehearing: a rehearing on the record with the attendant

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duty on the appellate Court to evaluate the evidence and draw inferences from primary facts. It is for this reason that this Court held quite recently in the case of Musa V State (2025) LPELR-81144(SC), that the Court below was duty bound when it found that the evaluation wasn’t rightly carried out, to carry out the evaluation and make its deductions, rather than make an order for a retrial. This is the essence of the power vested in the Court of Appeal by Section 15 of the Court of Appeal Act which grants the Court of Appeal full jurisdiction over proceedings commenced at the trial Court, as if such proceedings had been instituted at the Court of Appeal as Court of first instance.

Going by the foregoing, it is not in doubt that the Court below was right to have proceeded on an evaluation of the evidence of the parties after it found that this was not carried out by the trial Court, which merely evaluated the evidence of the parties in a sister-suit and erroneously sought to import the said evaluation into the suit leading to this appeal. This is more imperative in a case such as this that was fought on affidavit evidence, where it cannot be said that the trial Court which had heard and observed the demeanour of the witnesses, would have an upper hand.

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Learned Counsel for the Appellant also challenged the decision of the Court below contending that it failed to properly evaluate the evidence of the parties. He has argued that the Appellant’s Notice of Intention to defend raised triable issues and a good defence which ought to have necessitated a transfer of the suit to the General Cause List. As an example of improper evaluation, Counsel refers to the finding of the Court below that the Appellant raised two conflicting defences; when the Appellant raised more than two defences, to wit: fraud, illegality, intimidation, duress and deceit.

This issue therefore raises the following issues:

1. the purpose of a Notice of Intention to Defend;
2. whether the Appellant’s Notice of Intention to Defend disclosed a defence on the merit; and
3. whether or not the Court below was right when, after evaluating the evidence on record, it held that the Appellant’s Notice of Intention to Defend did not raise a defence on the merit to warrant a transfer of the suit to the General Cause List for hearing.

An affidavit showing cause why a defendant should be granted leave to defend an action must disclose a defence on the merit setting out the details and particulars of the defence. It must be one that –

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1. condescends upon particulars and as far as possible, deals specifically with the plaintiff’s claim and affidavit, and states clearly and concisely what the defence is, and what facts are relied upon as supporting it; b. states whether the defence goes to the whole or part of the claims and in the latter case, specifies the part; c. where the defence is that the defendant is not indebted to the plaintiff, states the grounds on which the defendant relies as showing that he is not indebted. A mere general denial that the defendant is not indebted will not suffice; d. where the affidavit states that the defendant is not indebted to the plaintiff in the amount claimed or any part thereof, states why the defendant is not so indebted, and states the real nature of the defence relied on; e. where the defence relied on is fraud, states the particulars of the fraud. A mere general allegation of fraud is useless; f. if a legal objection is raised, states clearly the facts and the point of law arising therefrom; g. in all cases, gives sufficient facts and particulars to show there is a bona fidedefence. See Muhammad V Barma & Anor.(2024) LPELR-62913 (SC); Macaulay V NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283; Sodipo V Lemninkainen & Ors. (1986) 1 NWLR (Pt.15) 220; Nishizawa Ltd. V Jethwani (1984) 12 SC.

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The defendant is expected to put forward some facts which cast doubt on the claim of the plaintiff. This is what is meant by a defence on the merits. It is not the same as a successful defence in litigation, rather all it entails is that it lays foundation for the existence of a triable issue or issues. That is to say, in as much as it is not a defence which must succeed on the merit, it must be one that reasonably calls for some interrogation on the claim of the Plaintiff. A defence which does not disclose any challenge on the claim of the Plaintiff will not be a defence on the merit and in such a situation, the lower Court will not waste its time to transfer the case to the general cause list. It is therefore not enough for the defendant to raise a defence, the defence must be on the merit and must relate to the claim, raising triable issues.

In all, what will constitute a defence on the merit will depend on the facts of each case. This is within the discretion of the trial Court; a discretion which must be exercised judicially and judiciously after a full and exhaustive consideration of the affidavit in support of the Notice of Intention to defend. See Grand Cereals and Oil Mills Ltd. V As-Ahel International Marketing Ltd. & Anor. (2000) 4 NWLR (Pt. 652) 310; Alhaji Danfulani V Shekari (1996) 2 NWLR (Pt. 433) 723; Alhaji

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Ahmed V Trade Bank of Nig. Plc (1997) 10 NWLR (Pt. 524) 290; Wema Securities & Finance Plc V Nigeria Agricultural Insurance Corp. (2015) LPELR-24833(SC); Lewis V UBA (2016) LPELR-40661 (SC).

After reviewing the Appellant’s Notice of Intention to Defend, the Court below held that the Appellant’s affidavit raised two materially conflicting defences. That an affidavit in support of such a notice that contains materially and irreconcilably conflicting averments as to the exact defence of the defendant to the plaintiff’s suit, cannot raise a triable defence to the suit, as the said conflicting averments are not evidence in law and cannot be relied on by the Court.

A close examination of the Appellant’s affidavit setting out his grounds for the defence raised in his Notice (at pages 61-67 of the Record) reveals as follows: the Appellant first contended that he did not require the loan for any contract, rather that he expressed his interest to contest for the seat of a Member of the House of Representatives. That in a bid to join Chief Christian Uba’s faction of the Anambra State PDP, he promised to give him the money to enable him contest for the general election, and to pay for his legal services both at the pre-election and post-election stages. However, that Chief

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Christian Uba reneged on this agreement. Paragraphs 7, 10 & 16 of the Appellant/Defendant’s affidavit is reproduced hereunder where it is deposed as follows:

“7. No contract was ever awarded to me, for which I required any loan to satisfy. On the contrary with the Notice of Election issued by Independent National Electoral Commission (INEC) for the National Assembly scheduled for April, 2011. I expressed interest to secure the sponsorship of the Peoples’ Democratic Party (P.D.P.).

*10. Chief Christian Uba, as a further incentive, assured me as well as all other aspirants for the sponsorship of the Peoples’ Democratic Party (PDP) for the election, that he would provide us with financial support to enable us -*

(i) Contest the General election

(ii) Pay for all stages of the legal services for the intra party disputes following the success of the state faction in Court over the National Headquarters of the P.D.P.

(iii) Pay for legal services for the election petitions and consequential matters bound to attend them, at every stage of the Court system.

16. Following our victory at the election, we approached Chief Christian Uba as the de facto leader of the party and expressed our gratitude for the sponsorship of the party. I and others thereafter raised the issue of the heavy cost of

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the election as well as the ensuing litigation which are still pending. Chief Christian Uba retorted that having won the election, we were in the position to finance both the intra party disputes and the election petitions filed against us.”

The foregoing facts disclosed in the affidavit of the Appellant presupposes a mutual consensual agreement between the parties which fell through. However thereafter, the Appellant averred at paragraphs 11 & 14 as follows:

*”11. After having obtained the Party’s sponsorship following the conduct of the primaries by the state executive who subscribed to the leadership and over lordship of Chief Christian Uba, he invited I and other candidates to a meeting. Thereat, he threatened to withdraw our sponsorship and concede the intra-party disputes in court to favour the candidates in the list of candidates projected by the National Secretariat, unless we signed the documents which he produced and the signature page of Plaintiff’s Exhibit D.*

14. I acknowledge that Exhibit D & E were signed by me based on the duress, fraud & deceit of Chief Christian Uba who was bent on achieving his goal of termination of my candidacy which I had spent all my resources to attain.”

By these subsequent depositions, the Appellant changed his stance to now adopt another position, which is that he had no consensual

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agreement with Chief Christian Uba, but rather, that Chief Uba threatened him into signing Exhibit D through duress and the use of fraud and deceit. This was what the Court below considered that prompted it into coming to the conclusion it did in its judgment (at pages 313-314 of the Record) thus:

“These two defenses conflict on whether the appellant voluntarily signed exhibit D or not. While the first defence states that appellant did not voluntarily sign exhibit D, the second defence states that he voluntarily did so and that the making of exhibit D was consensual, but that the consideration failed as the chairman of the respondent failed to provide the agreed funds to the appellant. The consensualness of making of exhibit D and his voluntary signing of same is clearly admitted by him in exhibit 6.

This material conflict renders the entire defence unreliable. The Court cannot choose between the two versions which to believe and which not to believe. It is trite law that each version cancels the other by virtue of the conflict. It is settled by a long line of judicial decisions that contradicting evidence amounts to no evidence and cannot be used or relied on by a court. See Omerede V. Eleazu & Ors (1996) 6 NWLR (Pt. 452) 1 (SC), C & C Construction Co. Ltd. V. Okhai (2003) 12 SC (Pt. 1) 133.”

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I concur with the reasoning of the Court below as the law is trite that a Court cannot pick and choose between the two opposing positions of a party on the merit of his case, as the inconsistent positions defeat the party’s case and renders it liable to be dismissed. See the case of Boy Muka V State (1976) LPELR-1924 (SC) where it was held that a Court cannot choose between the contradicting versions of evidence on a point, which to believe or which to disbelieve and which to rely on or which not to rely on, and so, it must disregard the two versions and treat them as unreliable. See also PDP V Uche & Ors. (2023) LPELR-59604(SC).

On the further contention of Appellant’s Counsel that the case of the Appellant raises an issue of fraud and falls within the exceptions in the Section 128(1) of the Evidence Act, having already agreed with the Court below that indeed, the Appellant’s affidavit raised conflicting defences which the Court is not in a position to pick and choose from, this argument is of no utilitarian use.

On the other hand, the case of the Respondent has been consistent as disclosed in the affidavit evidence and documents (in the form of exhibits) attached thereto. Not only was the loan application written and signed by the Appellant (Exhibit A), the affidavit evidence

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tracked the entire application process from the Respondent’s offer letter to the Appellant’s acceptance letter, and culminating in the loan agreement between the parties (Exhibits B, C & D respectively). The Appellant has not been able to impugn any of these documents. What is more, the Respondent also produced the signed and undated cheque leaves of the Appellant made out to the Respondent, totalling the loan sum of N200,000,000 (Two Hundred Million Naira) presented by the Appellant to the Respondent being security for the loan.

The law is and remains that the Court has a duty to take into cognizance the comprehensive and unequivocal wordings of the series of agreements between the parties and to give effect to them. Where parties to a contract have reduced the terms of a contract/agreement into writing, it is that document that invariably speaks and constitutes the guide to its interpretation, and the parties will be bound by the terms of their own agreement or arrangement or pact. See Antonio Oil Co. Ltd V AMCON (2024) LPELR-62610(SC); BFI Group Corporation V B.P.E. (2012) LPELR-9339(SC); JFS Investment Ltd V Brawal Line Ltd. & Ors (2010) LPELR-1610(SC). In this case, I am of the considered view that Exhibit D, being the loan agreement between the parties, was properly construed by the two lower

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Courts. In view of this, it is quite apparent that the Respondent properly established its case and was deserving of the summary judgment given in its favour by the trial Court and affirmed by the Court below.

Finally, the Appellant has fervently contended that Exhibit 9 does not amount to an abuse of court process. In defining what amounts to an abuse of court process, this Court held in the case of A.C.B. Plc V Nwaigwe & Ors. (2011) LPELR-208(SC) 7-8, B-D, per Onnoghen, JSC thus:

*”Abuse of court processes has been variously defined by this Court over the years and includes a situation where a party improperly uses judicial process to the irritation, harassment and annoyance of his opponent and to interfere with the administration of justice. Where two or more similar processes are issued by a party against the same party/parties in respect of the exercise of the same right and same subject matter or where the process of the court has not been used bona fide and properly – see Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 188; Okorodudu v. Okoromadu (1977) 3 SC 21; Okafor v. AG Anambra State (1991) 6 NWLR (Pt.200) 63 at 681; Nnana v. Nwanebe (1991) 2 NWLR (Pt.172) 181; C.O.P. v. Fasehan (1997) 9 NWLR (Pt.507) 171; Olutinrin v. Agaka (1998) 6*

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*NWLR (Pt.554) 366. In the case of Adesokan v. Adegorolu (1997) 3 NWLR (Pt.493) 297, it was held that to institute an action during the pendency of another one claiming the same reliefs amount to an abuse of process of court. It does not matter whether the matter is an appeal or not, for as long as the previous action has not been finally decided, the subsequent action constitutes an abuse of process of the court – see the authorities earlier cited. It is not the existence or pendency of a previous suit that causes the problem but the institution of a fresh action between the same parties and on the same subject matter when the previous suit has not been disposed of that constitutes abuse of process of court.”* (Emphasis supplied)

The suit filed by the Appellant, as disclosed in Exhibit 9, having been instituted during the pendency of this suit between the same parties and on the same subject matter, clearly amounts to an abuse of court process, as was rightly held by the Court below. Based on all the above findings, this issue is also resolved in favour of the Respondent, and against the Appellant.

Consequently, having resolved both issues against the Appellant, this Appeal is bereft of merit. It fails and is dismissed. Accordingly, the judgment of the Court below affirming the judgment of the trial Court

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is hereby affirmed. I award costs of the appeal assessed at N4,000,000.00 (Four Million Naira) to the Respondent against the Appellant.

Appeal dismissed.