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In The Supreme Court of Nigeria

On Friday, the 20th day of July 1990

SC 215/1989

 

Before Their Lordships

 

 

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Saidu Kawu

......

Justice, Supreme Court

Abdul Ganiyu Agbaje

......

Justice, Supreme Court

Abubakar Bashir Wali

......

Justice, Supreme Court

 

 

Between

 

The Federal Military Government of Nigeria

Attorney-General of the Federation

Minister of Internal Affairs

Director of State Security Services

......

Appellants

 

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, 1988 to which Umarco attached the Niger Embassy note-verbale No.351881AHN of 22nd February, 1988 and a copy of the Ministry of External Affairs note-verbale No.B.510/88 acknowledging the receipt of the Embassy of Niger note. This was followed by another letter Ref. No.OD/SH/0173 of 25th February, 1988.

 

(g)    The plaintiff and his agents at all material times in their dealings with Nigerian authorities deliberately and fraudulently represented and caused to be assumed that the goods in question were relief materials while in actual fact they were commercial goods.

 

(h)    The defendants state that the letter Ref. No.T.4553/S.21 Vol.111165 of 15th March, 1988 referred in paragraph 14 of the statement of claim was part of the dubious means by the plaintiff and his agents to bring in prohibited goods into Nigeria en route to Niger Republic under the guise of relief materials.

 

After examining the averments and referring to the provisions of sections 22 and 23 of the Customs and Excise Management Act, 1958 the Court of Appeal held that there was nothing in the statement of defence to show that the defendants had any good cause to allow them to defend the action. Suppose it is granted, for the sake of argument only, that the defendants counter-affidavit did not disclose any cause, as was held by the Court of Appeal, to let in the defendants to defend the action, the Court of Appeal was left with the statement of defence to see what defence, if any, had been pleaded by the defendants. Instead of considering all the paragraphs thereof, which averred the defendants' defence, the Court of Appeal concerned itself only with paragraphs 4, 8 and 13 thereof. In my opinion apart from these paragraphs, there are other paragraphs of the statement of defence, which raise substantial defence against the action. These are paragraphs 6, 7,9, 11, 12,13,14,15,16 and l8which read as follows-

 

6.      In further reply to paragraph 10 of the Statement of Claim, the defendants state that the Trade Agreement between the 1st defendant and the Niger Republic does not cover the transhipment of wheat flour through Nigeria.

 

7.     Furthermore, the defendants aver that approval for transhipment/transit of goods to land locked neighbouring West African Countries through Nigerian Ports is never given in respect of prohibited/commercial goods owned by private businessmen of such land locked neighbouring countries.

 

9.      The defendants state that the plaintiff is not an appointed agent of the Niger Republic as contained in paragraph 10 of the Statement of Claim but rather a businessman and citizen of Niger Republic resident in Maradi."

 

11.    The defendants state that contrary to the plaintiffs averment in paragraph 10 of the Statement of Claim the plaintiff in his statement to security agents of the 6th defendant, revealed that he was never appointed an agent of the Niger Republic. The defendants will rely on the said statement, i.e. in Hausa and the English translation of the plaintiff (sic) at the trial of this suit.

 

12.    The defendants aver that the plaintiff being aware of the ban on importation of wheat into Nigeria set out to acquire and fraudulently acquired a purported "approval" for the transhipment of wheat through Nigeria Ports by means of the following acts:-

 

(a)    Having obtained a consular attestation in his country the plaintiff brought it to his country's Ambassador to Nigeria who in turn attached and forwarded same by a note-verbale No.2778/ANN dated 4th February, 1988 to Nigeria's External Affairs Ministry requesting the said Ministry to inter-cede with the appropriate Nigerian authority to accord to the plaintiff facilities for the transhipment of various commodities to Niger Republic through Nigerian Ports.

 

(b)    Prior to the receipt of a reply to the note-verbale referred to above, the plaintiff employed the services of Umarco Nigeria Ltd. as his shipping agents in respect of the goods in question and on whose advice the Niger Embassy sent a second note-verbale No. 35/88/ANN dated 22nd February 1988 indicating the quantity of each of the goods to be imported by the plaintiff.

 

(c)    On receipt of note-verbale No.27/88/ANN, the External Affairs. Ministry responded through a note-verbale No.B.5I()A~8 of 11th February, 1988 and informed the Niger Embassy that "appropriate authority has been notified and further development on the matter will be communicated to the Embassy."

 

(d)    The Paris based sellers of the wheat, Messrs Grands M. de Pantin" approached the Nigerian Green Lines Limited. owners of the MV YINKA FOLAWIYO with an offer of 5,000 Metric tonnes of wheat flour to be discharged at a suitable Nigerian Port for onward carriage to Niger Republic. The ship owners rejected the offer because there was no clearance or approval to import the wheat into Nigeria whereupon the sellers informed the ship owners that the plaintiff was in process of obtaining the necessary approval.

 

(e)    The plaintiff somehow managed to secure an "approval" to off load the goods either at Calabar or Port Harcourt Ports and the purported approval was conveyed to the Niger Embassy vide Ministry of External Affairs note-verbale No.B/ 791/88 of 11th March, 1988.

 

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 Ministry is not the appropriate authority to approve the importation into Nigeria of banned goods or any goods at all.

 

Particulars

 

(a)    The Federal Military Government's 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 tile 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.ODAISISMI673 dated 23rd February, 1988 to which Umarco attached the Niger Embassy note-verbale No.35/88/ANN of 22nd February. 1988 and a copy of the Ministry of External Affairs note-verbale No.B.510/88 acknowledging the receipt of the Embassy of Niger Note. This was followed by another letter ref. No. OD/SH/4/0173 of 25th February, 1988.

 

(g)    The plaintiff and his agents at all material times in their dealings with Nigerian authorities deliberately and fraudulently represented and caused to be assumed that the goods in question were relief materials while in actual fact they were commercial goods.

 

(h)    The defendants state that the letter Ref. No.T.4453/S2/Vol.111/65 of 15th March, 1988 referred to in paragraph 14 of the Statement of Claim was part of the devious means by the plaintiff and his agents to bring in prohibited goods into Nigeria en route to Niger Republic under the guise of relief materials.

 

14.    In further answer to paragraph 15 of the Statement of Claim, the defendants state categorically that the letter referred to above in paragraph 13(g) and titled "Transhipment of Relief Material to the Republic of Niger" was not an approval by the Ministry of Transport to bring in relief materials or other goods but to use the Apapa Port instead of the Calabar or Port-Harcourt Ports having been misled to believe that the goods in question were relief materials.

 

15.    The defendants state that no approval whatsoever was or has been given by the Ministry of Transport or any other government agency for the importation into Nigeria of the said prohibited consignment of 5,000 tonnes of wheat flour.

 

16.    In further reply to paragraph 17 of the Statement of Claim, the defendants state, the plaintiff having fraudulently obtained approval to discharge the goods at Apapa Port, Greenlines Limited, owner of "MV YINKA FOLAWIYO" accepted to carry the cargo and berthed at Apapa Port on the 30th of March, 1988 sequel to which both the ship and the prohibited wheat flour were seized. The ship was later released while the wheat was ordered to be released to Ideal Flour Mills Limited, Lagos for safe-keeping in a bonded warehouse.

 

18.    In further reply to paragraph 20 of the Statement of Claim the defendants state that no permission was given to the plaintiff by the 1st defendant or any of its agents for the importation of prohibited goods. The defendants will contend at the trial that even the alleged permission was fraudulently obtained on the misrepresentation that the goods in question were relief materials meant for his country.

 

Now, the procedure under Order 10 is not intended to shut out a defendant who can show that there is a triable issue, which is applicable to the plaintiffs claim as a whole from making his defence before the trial court. In Sheppards v. Wilkinson 6 T.L.R. 13 it was held whilst considering a defence under the old Order 14 of the English Rules, which is in pari materia with Order 10 of the High Court of Lagos State (Civil Procedure) Rules, that –

 

The summary jurisdiction conferred by this Order must be used with great care. A defendant ought not to be shut out from defending unless it is very clear indeed that he has no case in the action under discussion.

 

Furthermore, in showing cause why a defendant should be allowed to defend the action, a complete defence need not been shown. The defence set up need only show that there is a triable issue or question or that for some other reason there ought to be a trial. Leave to defend ought to be given unless there is clearly no defence in law and no possibility of a real defence on question of fact - See Jacobs v. Booth's Distillery Co. (1901-2) vol.85 S.T.L.R.262, Runnacles v. Mesquita (1876)1 Q.B.D.416 and Jones v. Stone (1894) AC. 122 at p.124.

 

The grant of leave to a defendant under Order 10 to defend the action is on to be judicially exercised by the trial Judge. It is settled principle that such discretion once exercised should not easily be interfered with by a superior court unless there is justification to do so. In my opinion the paragraphs of the defendant's statement of defence quoted above, which the Court of Appeal failed to consider, raise substantial triable issues on the question of fact and the defendants ought, if the paragraphs in question had n considered by the Court of Appeal, to have been allowed to defend the action. In my view the failure of the Court of Appeal to consider the averments in the paragraphs in question is a serious omission which had occasioned a miscarriage of justice. For the foregoing reasons I am satisfied that the ground to interfere with the exercise of discretion by the Court of Appeal arises. Accordingly, I will let in the defendants to defend the action.

 

In the result this appeal succeeds and it is hereby allowed with N500.00 costs to the defendants/appellants. The case is hereby remitted to the High Court of Lagos State to be heard on the merits before a Judge other than Ayorinde, C.J.

 

 

Judgement delivered by

Karibi-Whyte. J.S.C.

 

I have had the privilege of a preview of the judgment of my learned brother, Uwais, J.S.C., in this appeal. I agree with it and have nothing further to add.

 

I agree with his conclusion that the affidavit and the statement of defence filed by the defendants/appellants discloses an allegation of fraud which challenges the validity of the claim of the respondents/plaintiffs that consent was obtained. This raises a triable issue which ought to be tried.

 

Although the procedure under Order 10 rules 1 - 3 is designed to enable the plaintiff to obtain summary judgment wit bout trial in those cases where the Plaintiff's case is unassailable Cow v. Casey (1949)1 KB.474 at 481 and the defendant cannot show a defence which will lead to a trial of the case on its merits, - See U. T. C. (Nig) Ltd. v. Pamotei & Ors. (1989)2 N.W.L.R. (pt. 103) 244, Roberts v. Plant (1895) Q.B.597 it is not at the same time intended by that same procedure to shut out a defendant who has shown on the affidavit or the statement of defence filed that he has raised an issue against the claim which ought to be tried. - See Nishizawa v. Jethwani (1984)12 S.C.234. It must be pointed out of course that the Court ought not allow a sham defence raised to gain time or for the prolongation of the litigation under this procedure - See Jones v. Stone (1894) AC. 122.

 

However, wherever the defendant has raised a defence bona fide which creates doubts in the mind of the judge whether in the interest of justice the defence raised ought to be considered, the defendant ought not be shut out from raising the defence - See Sao v. Hakim 5 T.L.R. 72. In all cases the Order 10 procedure should only be applied and leave to defend refused in very clear cases where the defendant has not on the affidavit or statement of defence disclosed a defence on the merits.

 

The grant of leave to defend under this Order is a discretion to be exercised by the trial Judge not arbitrarily, but on well settled principles. Like the exercise of all judicial discretions it must be exercised on the principles recognised and applied in other cases.

 

In my opinion the statement of defence of the defendants/appellants which contains allegation of fraud raise substantial issues on questions of facts to be at least investigated or tried. See Miles V. Bull (1969)1 Q.B.258. The defendants ought to have been allowed to defend the action. The question whether the defence raised will constitute a sufficient defence to the action on the merits is not an issue at this stage. See Jacob v. Booths Distillery Co. (1901) 85 LT. 262. Appellants are only seeking leave of the court to defend the action. In my opinion appellants have a right to defend the action as soon as they disclose from their defence that they have a legitimate issue to be tried in view of the claim against them.

 

The failure of the Court below to recognise this elementary and fundamental principle constitutes a serious omission which had occasioned a miscarriage of justice. Accordingly, I think this Court is entitled to interfere with the exercise of their discretion by the Court below which has not been done on the recognised principles. The defendants having raised a triable issue, I will accordingly allow them to defend the action brought by the plaintiff against them.

 

This appeal therefore succeeds, and it is hereby allowed. Respondents shall pay N500 as costs to the appellant/defendants.

 

The case is remitted to the High Court of Lagos State to be heard on the merits by a Judge other than the trial Judge.

 

 

Judgement delivered by

Kawu. J.S.C.

 

I have had the privilege of reading, in draft, the lead judgment of my learned brother, UWAIS, J.S.C., which has just been delivered. I am in complete agreement with his reasoning and also with his conclusion that this appeal ought to be allowed.

 

In an application under Order 10, the defendant should be given leave to defend in all cases where he shows that he has a bona fide defence, or where he adduces facts which may constitute a plausible defence, or shows there is some substantial question of fact or presents a prima facie case of fraud See 22 Halsbury's Law of England (3rd Edition) 761, para. 1623. In this case the defendants, in paragraphs 12, 13 and 16 of their Statement of Defence made a prima facie allegation of fraud against the plaintiff, and in the circumstances, they ought to have been given leave to defend. See Powszechny Bank Zwiazkowy W Poisce V. Paros (1932)2 K. B .353 at p.359.

 

I too would allow the appeal and it is accordingly allowed. I abide by the orders made in the lead judgment of my learned brother, Uwais, J.S.C., including the order as to costs.

 

 

Judgement delivered by

Agbaje. J.S.C.

 

I have had the opportunity of reading in draft the lead judgment of my learned brother Uwais, J.S.C. I agree entirely with his conclusions and reasoning. It is only to emphasise the correctness of the decision in my view that I make the following short contribution to it.

 

The plaintiffs claims against the defendants are as follows:

 

(1)     A declaration that the seizure, confiscation or take-over of the 5000 metric tonnes of Elephant Wheat flour (dessiu) farm fraincaise (5000 KG) brand of wheat flour property of the Plaintiff now lying at the Apapa Port in 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, agenis, 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 the Apapa port part of the said wheat flour.

 

The plaintiff accompanied the writ of summons served on the defendant with a statement of claim. Relevant to the point at issue in this appeal is paragraph 10 of the statement of claim which pleads the existence of a trade agreement between the 1st defendant and the Niger Republic pursuant to which the latter, according to the plaintiff, appointed him as its agent for the importation into Niger Republic of certain food items including wheat flour. It is also alleged that the Niger Republic confirmed the plaintiff's appointment as its agent to the 1st defendant in a letter dated 25th January, 1988 written to the Ministry of Foreign Affairs. It is expressly pleaded in paragraph 11 of the statement of claim as follows:

 

11.    In consequence of the said Trade Agreement, and following consular and diplomatic practice the plaintiff's Ministry of Foreign Affairs & Co-operation and the plaintiff's Embassy in Lagos applied to the 1st defendant through the 1st defendant's Ministry of External Affairs for permission to tranship certain commodities through Nigeria whereby the commodities will be discharged in Nigeria from ships into road trucks and driven directly to Maradi in Niger Republic under the supervision of the Nigerian authorities until the commodities reach the Nigerian/Niger Border. The plaintiff will rely on the documents already referred to in paragraph 9 thereof in support of the averment herein.

 

And in paragraph 15 it is pleaded as follows:-

 

15     And in paragraph 15 it is pleaded as follows:"15 Following the approval and the representation of approval made and given to the plaintiff by the 1st defendant, the plaintiff imported into Nigeria for transhipment to Maradi, in the Niger Republic part of the commodities including 5000 tonnes of Wheat Flour in the vessel "MV YINKA FOLAWIYO" a Nigerian registered ship." (italics mine).

 

Paragraphs 12 to 14 of the statement of claim plead all that transpired including correspondence between all concerned before the approval alleged in paragraph 15 was given. Paragraphs 16 to 20 of the statement of claim allege that the wheat flour was wrongfully seized by the 1st defendant after it has been lawfully imported into Nigeria for onward transmission to ii Niger Republic pursuant to the Trade Agreement and the approval pleaded in paragraphs 11 and 15 of the statement of claim.

 

The plaintiff in the affidavit in support of the application for summary judgment attached various documents in proof of the various allegations in the statement of claim. By paragraphs 8 and 13 of their statement of defence the defendants plead as follows:

 

8.     The defendants aver that by virtue of the Customs, Excise Tariff, etc. (Consolidation) Decree 1988, No.1 the 1st defendant banned the importation of wheat and wheat products into 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 approval as the said Ministry is not the appropriate authority to approve the importation into Nigeria of banned goods or any goods at all."(Italics mine).

 

In the affidavit of the defendants showing cause against the application for summary judgment full particulars of the fraud alleged in paragraph 13 of the statement of claim are given.

 

The case of Jacob's v. Booth's Distillery Company (1901-2) Volume 85 N.S. The Law Times Report 262 is authority for the proposition that judgment should only be ordered under Order XIV (U.K. Rules) dealing with summary judgment where assuming all the facts in favour of the defendant they do not amount to a defence in law. The same case also decides it that where there is a triable issue, though it may appear that the defence is not likely to succeed, the defendant should not be struck out from laying his defence before the court either by having judgment against him or by being put under terror to pay money into court as a condition of obtaining leave to defend.

 

I will refer to notes 14/3-4/3 to Order 14 (U.K.) in the Supreme Court Practice 1976 dealing with defendant showing cause against an application for summary judgment:-

 

The defendant may show cause against the plaintiff's application.

 

(1)    by a preliminary or technical objection, e.g., that the case is not within this Order or that the statement of claim or affidavit in support is defective, such as no due verification of the claim. No affidavit is required in support of such objection. Cf. Bradley v. Chamberlyn (1893)1 Q.B.439. If the objection is fatal, the Master will then dismiss the application under Rule 7 or give unconditional leave to defend; if the defect is capable of amendment, the Master may give leave or amend and proceed on the application as amended, subject to the questions of adjournment and costs;

 

(2)    On the merits, e.g., that he has a good defence to the claim on the merits, or that a difficult point of law is involved, or a dispute as to the facts which ought to be tried, or a real dispute as to the amount due which requires the taking of an account to determine, or any other circumstances showing reasonable grounds of a bona fide defence.

 

If we assume that the allegations of fraud by the defendant against the plaintiff, in the manner in which the purported approval upon which the plaintiff relies was obtained, are true there can be no doubt that the defendants have a defence in law to the plaintitf's claim. It is trite to say that fraud vitiates the most solemn of all obligations including the judgment of a court. The upshot of this assumption will be that the plaintiffs have no approval to import the wheat flour into Nigeria with the attendant consequences which would include seizure of the goods by the proper authorities.

 

It is clear too from the annextures to the affidavit verifying the plaintiff's statement of claim and the affidavit of the defendants showing cause against the application for summary judgment that a difficult point of law is involved in this case, and also that there is a dispute as to facts which ought to be tried. In the circumstances the procedure for summary judgment is in my judgment most inappropriate.

 

For the above reasons and the fuller reasons given in the lead judgment of my learned brother, Uwais, J.S C. I too will allow the defendant's appeal, set aside the judgment of the two lower courts empowering the plaintiff to enter summary judgment in this case. I will also let in the defendants to defend the case. I abide by all the consequential orders in the lead judgment.

 

 

Judgement delivered by

Wali. J.S.C.

 

I have read in advance, a copy of the lead judgment of my learned brother, Uwais, J.S.C. and I entirely agree with the reasoning and endorse the conclusions contained therein.

 

The respondent who was the plaintiff in the High Court of Lagos State took out a writ of summons against the appellants/defendants asking for a declaration that the 5,000 metric tonnes of Elephants Wheat flour (dessiu) farm fraincaise (5000 KG) brand, confiscated at the Apapa Port in Lagos by the defendants, and/or their agents, servants or privies is the property of the plaintiff and that its seizure by the said defendants is improper, unlawful and illegal and that the defendants be compelled to release and deliver to the plaintiff the said commodity. In addition the plaintiff also claimed for an order for inquiry into damages suffered by him resulting from the seizure of the wheat flour. He finally prayed for an order of injunction restraining the defendants, their agents/servants or privies or any one claiming through them from seizing, interfering with the ownership or possession of the said wheat flour.

 

After service of the writ of summons on the defendants, they entered appearance disputing the claims. Subsequent to the appearance, the plaintiff filed a statement of claim and served the same on the defendants. The plaintiff then applied for judgment under Order 10, Rule 1(a) and (c) of the Lagos State High Court (Civil Procedure) Rules.

 

On 13th June, 1988 the defendants also filed a Statement of Defence.

 

The learned trial Judge, Ayorinde J. (as he then was), after hearing counsel on both sides on all the documents filed before him to wit - the pleadings, the affidavits and counter- affidavits, arrived at the following conclusions –

 

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.

......................................................

The permission was 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 Decree No.1 of 1988 should not be transhipped into another country. The Decree did not expressly prohibit transhipment. The applicant took the best course to seek permission which was granted. The permission granted has not been withdrawn or cancelled. They remained valid (sic).

 

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 Ports for the transhipment of his goods including the wheat flour. It is not imported into Nigeria. Like all other item 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 the plaintiff/applicant to enter judgment against them as prayed.

 

The defendants were not satisfied with the judgment of the High Court and appealed to the Court of Appeal, Lagos Division.

 

In the judgment of the Court of Appeal delivered by Akpata, J.C.A. (as he then was), after dealing with some preliminary issues raised in the appeal, proceeded, and considered the substantive issues. The learned Justice said-

 

.. .. 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 pages 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)1 N.W.L.R. (Part 15) at 220).

 

It is therefore necessary for me to have a close look at the paragraphs and draw the necessary inference as to whether or not the defendants have shown that they have a defence to the action.

 

After considering paragraphs 4, 8 and 13 of the 1st, 2nd, 4th and 6th defendant, Statement of Defence, he concluded:-

 

There is no doubt that the importation of wheat flour to Nigeria is prohibited by Decree No.1 of 1988. By Section 22 of Customs and Excise Management Act 1958 as amended by Legal Notice No.25 of 1959, the Minister may by Order:

 

(a)     prohibit the importation of any specified goods;

 

(b)    prohibit the importation of all goods of any specified goods except as provided by the order;

 

(c)    subject to any specified exceptions prohibited the importation of all goods except with the general or special permission in writing of a specified authority or authorities.

 

Section 23 states:

 

1.     Subject to sub-section (2), goods imported in transit or for transhipment or as stores shall not be deemed to be goods the importation of which is prohibited, unless such goods are goods the importation of which in transit or for transhipment or as stores is expressly prohibited.

 

2.     Where any goods imported in transit or for transhipment or as stores would, but for the provisions of sub-section (1), be goods the importation of which is prohibited, such goods shall be duly exported within such time as the Board may direct, and any such goods which are not so exported shall be liable to forfeiture.

 

It has not been denied that the wheat flour were goods in transit …………

 

In effect there is nothing in the statement of defence to show that pursuant to Section 23(1) of the Customs and Excise Management Act 1958 the wheat flour is expressly prohibited by any Decree or an Act or subsidiary instrument made pursuant to a Decree or an Act, whether or not it is in transit. The policy of any Government which has not received the force of law cannot be the basis for punitive measure. There is no law which limits transit goods to only relief materials and excluding commercial goods owned by private businessmen. At least, it is not apparent in the statement of defence.

 

I have earlier in this judgment dealt with the role played by the Ministry of External Affairs. Any wrong doing by that Ministry 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 13 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 defendants have further appealed to this court against the decision of the Court of Appeal.

 

The fundamental issue raised in this appeal apart from the subsidiaries is whether the defendants have shown by their counter affidavits, the accompanying documents and the Statement of Defence, a prima facie defence, or has raised a difficult point of law or such other issues of fact which ought to he tried. See Jacobs V. Booths Distillery Co. (190l -2) vol.85 N .S.T. L.R.262; Contract Discount Corporation Ltd. V. Furlong (1948)1 All E. R.274 and Cow V. Casey (1949)1 K.B.474. These are decisions based on Order 14 of the Rules of Supreme Court of England which order is the same for all intent and purpose with order lo of the Lagos High Court (Civil Procedure) Rules, Cap.52.

 

In paragraphs l0, 11,12,13,14,15,16,17, l8 and 2O of the Statement of Claim, the plaintiff pleaded thus:-

 

10.   Pursuant to the Trade Agreement existing between the 1st defendant and the Niger Republic, the Niger Republic appointed the plaintiff as its agent for the importation into Niger Republic certain foods items including milk, sugar, tea, wheat flour, salt, glutamate, vegetable oil (hereinafter referred to as "the commodities") and confirmed the plaintiff's appointment to the 1st defendant, in a letter dated 25th January, 1988 written by its Ministry of Foreign Affairs and Co-operation and also another letter written by the Niger Republic Ambassador, dated 4th February, 1988 also to the 1st defendant and in each case, following diplomatic and consular practice, through the 1st defendant's Ministry of External Affairs in Lagos. The plaintiff will at the trial found upon the documents referred to herein.

 

11.    In consequence of the said Trade Agreement, and following consular and diplomatic practice the plaintiff's Ministry of Foreign Affairs and Co-operation and the plaintiff’s Embassy in Lagos applied to the 1st defendant through the 1st defendant's Ministry of External Affairs for permission to tranship certain commodities through Nigeria whereby the commodities will be discharged in Nigeria from ships into road trucks and driven directly to Maradi in the Niger Republic under the supervision of the Nigerian authorities until the commodities reach the Nigerian/Niger Border. The plaintiff will rely at the trial on the documents already referred to in paragraph 9 hereof in support of the averment herein.

 

12.    By a letter dated 11th February, 1988 the 1st defendant through its External Affairs Ministry acknowledged the receipts of the documents referred to in paragraphs 10 and 11 hereof and promised to communicate with the Niger Republic. The plaintiff will rely at the trial on the document referred to herein.

 

13.    By a document dated 22nd February, 1988 written to the 1st defendant through its Ministry of External Affairs the plaintiff's Embassy specified the quantity of each of the commodities to be imported by the plaintiff and by another document reference No.B171/88 of 11th March, 1988 the 1st defendant through its said Ministry of External Affairs in Lagos communicated its approval to the plaintiff through the plaintiffs Embassy in Lagos that the goods could be brought into Port Harcourt or Calabar Port for transhipment to the Niger Republic. The Plaintiff will found upon the documents referred to herein.

 

14.    Owing to logistic reasons, the plaintiff found that Calabar Port or Port Harcourt would not be appropriate and he therefore sought the approval, by letter written on his behalf by his agent Messrs. Umarco (Nigeria) Limited, to the 1st defendant through its Ministry of Transport in Lagos which is also the supervisory authority for the 3rd defendant, for permission to discharge the commodities in Lagos either at the Apapa Port or at the Tin Can Island port and by a letter reference No.T144531S .2Nol.1l1I65 of 15th March, 1988 the 1st defendant gave approval to the Plaintiff to use the Apapa Port.

 

15.    Following the approval and the representation of approval made and given to the plaintiff by the 1st defendant, the plaintiff imported into Nigeria for transhipment to Maradi, in the Niger Republic part of the commodities including 5000 tonnes of wheat flour in the vessel "MV YINKA FOLAWIYO" a Nigerian registered ship.

 

16.   The 4th defendant through its Department of Customs & Excise by a letter reference No.CBCE/T'ECH.SHBlL of 30th March,1988 conveyed approval and directed that the Wheat Flour be released to the plaintiff through the plaintiff Embassy in Lagos.

 

17.    When the vessel arrived on the 31st March, 1988, the same 1st Defendant which has given its approvals referred to in paragraphs 12, 14 and 16 hereof directed the 3rd defendant and the Department of Customs and Excise of the 4th defendant to seize the said wheat flour of the Plaintiff and the 3rd and 4th defendants complied with the 1st Defendant's directive.

 

18.    That part of the 1st defendant's directive referred to in paragraph 17 hereof is contained in a letter to the Department of Customs and Excise of the 3rd defendant, signed by one Adamu Bello on behalf of the 6th defendant directing that the plaintiffs wheat flour be delivered to the 7th defendant's warehouse at the Ideal Flour Mills (Nig.) Ltd. in Matori, Lagos which is a private warehouse.

 

19.   x x x x x x x x x x x x x x x x x x x x x x x x x x x

 

20.    The plaintiff has not been accused of any wrong doing by any of the defendants and in particular by the 1st or the 6th defendants and the reasons for the seizure have not been communicated to the plaintiff and the permission given to the plaintiff by the 1st defendant is still current and has not been withdrawn."

 

In the Statement of Defence of 1st, 2nd, 4th and 6th defendants, it was pleaded in paragraph 11 to 18 as follows:-

 

11.    The defendants state that contrary to the plaintiff's averment in paragraph 10 of the Statement of Claim the plaintiff in his statement to security agents of the 6th defendant, revealed that he was never appointed an agent of the Niger Republic. The defendants will rely on the said statement, i.e. in Hausa and the English translation of the plaintiff at the trial of this suit.

 

12.   The defendants aver that the plaintiff being aware of the ban on importation of wheat into Nigeria set out to acquire and fraudulently acquired a purported "approval" for the transhipment of wheat through Nigerian Ports by means of the following acts:-

 

(a)    Having obtained a consular attestation in his country, the plaintiff brought it to his country's ambassador to Nigeria who in turn attached and forwarded same by a note-verbale No.27/88/ANN dated 4th February, 1988 to Nigeria's External Affairs Ministry requesting the said Ministry to intercede with the appropriate Nigerian authority to accord to the plaintiff facilities for the transhipment of various commodities to Niger Republic through Nigerian Ports.

 

(b)    Prior to the receipt of a reply to the note-verbale referred to above, the plaintiff employed the services of Umarco Nigeria Ltd. as the shipping agents in respect of the goods in question and on whose advice the Niger Embassy sent a second note-verbale No.35188/ANN dated 22nd February,1988 indicating the quantity of each of the goods to be imported by the plaintiff.

 

(c)    On receipt of note-verbale No.27/88/ANN, the External Affairs Ministry responded through a note-verbale No.B.510/88 of 11th February, 1988 and informed the Niger Embassy that 'appropriate authority has been notified and further development on the matter will be communicated to the Embassy.'

 

(d)   The Paris based sellers of the wheat, Messrs Grands M. de Pantin approached the Nigerian Green Lines Limited, owners of the MV YINKA FOLAWIYO with an offer of 5,000 Metric tonnes of wheat flour to be discharged at a suitable Nigerian Port for onward carriage to Niger Republic. The shipowners rejected the offer because there was no clearance or approval to import the wheat into Nigeria whereupon the sellers informed the shipowners that the plaintiff was in the process of obtaining the necessary approval.

 

(e)    The plaintiff somehow managed to secure an 'approval' to offload the goods either at Calabar or Port Harcourt Port and the purported approval was conveyed to the Niger Embassy vide Ministry of External Affairs note-verbale No.B/791/88 of 11th March, 1988.

 

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.

 

Particulars

 

(a)    The Federal Military Government's 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 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/SH1673 dated 23rd February, 1988 to which Umarco attached the Niger Embassy note-verbale No.35/88/AHN of 22nd February, 1988 and a copy of the Ministry of External Affairs note-verbale No.510/88 acknowledging the receipt of the Embassy of Niger note. This was followed by another letter Ref.No.0D/SH/4/0173 of 25th February, 1988.

 

(g)   The plaintiff and his agents at all material times in their dealings with Nigerian authorities deliberately and fraudulently represented and caused to be assumed that the goods in question were relief materials while in actual fact they were commercial goods.

 

(h)    The defendants state that the letter Ref. No.T.4553/S.2/Vol.111/65 of 15th March, 1988 referred to in paragraph 14 of the statement of claim was part of the dubious means by the plaintiff and his agents to bring in prohibited goods into Nigeria en route to Niger Republic under the guise of relief materials.

 

14.    In further answer to paragraph 15 of the Statement of Claim, the defendants state categorically that the letter referred to above in paragraph 13(g) and titled Transhipment of Relief Material to the Republic of Niger" was not an approval by the Ministry of Transport to bring in relief materials or other goods but to use the Apapa Port instead of the Calabar or Port-Harcourt Ports having been misled to believe that the goods in question were relief materials.

 

15.    The defendants state that no approval whatsoever was or has been given by the Ministry of Transport or any other government agency for the importation into Nigeria of the said prohibited consignment of 5,000 tonnes of wheat flour.

 

16.    In further reply to paragraph 17 of the Statement of Claim, the defendants state, the plaintiff having fraudulently obtained approval to discharge the goods at Apapa Port, Greenlines Limited, owner of "MV YINKA FOLAWIYO" accepted to carry cargo and berthed at Apapa Port on the 30th of March, 1988 sequel to which both the ship and the prohibited wheat flour were seized. The ship was later released while the wheat was ordered to be release to ideal Flour Mills Limited, Lagos for safe-keeping in a bonded warehouse.

 

17.    In further reply to paragraphs 18 and 19 of the Statement of Claim the defendants state that the 1st defendant directed that the whole consignment of wheat flour be removed to a warehouse for preservation and fumigation for fear of its decomposition being a perishable commodity. Of the total consignment, only 1,000 tonnes had been removed to the said warehouse before plaintiff commenced this action.

 

18.    In further reply to paragraph 20 of the Statement of Claim the defendants state that no permission was given to the plaintiff by the 1st defendant or any of its agents for the importation of prohibited goods. The defendants will contend at the trial that even the alleged permission was fraudulently obtained on the misrepresentation that the goods in question were relief materials meant for his country."

 

Looking at the statement of claim and the statement of defence and particularly the portions reproduced above, the defendants, after making specific denials of the facts averred in the said statement of claim, proceeded to allege that the documents relied upon by the plaintiff were either fraudulently obtained or forged. See paragraph 13 of the Statement of Defence. These are issues which will require further investigation and adduction of oral evidence to resolve them. Even where the defendants cannot point to a specific issue which ought to be tried but nevertheless satisfy the court that there are circumstances that ought to be investigated, the court should allow the defendants leave to defend the action. Both issues of fraud and forgery pleaded by the defendants are difficult points of law.

 

The present case does not involve the question of endorsement of statement of claim on the writ only but also the question whether upon the affidavit evidence and the statement of defence, and the documents exhibited, sufficient facts have been disclosed to entitle the defendants to defend the action. The defendants need not show a complete defence before they are given an unconditional leave to defend. It is enough if they can show that there is "a fair probability of defence." Sec Ward V. Plumbley (1890) 6 TLR 198 and paragraphs 37 to 60 of Aguda on Practice and Procedure of the Supreme Court, Court of Appeal, and High Courts of Nigeria'.

 

It is for these and the more elaborate reasons contained in the lead judgment of my learned brother, Uwais, J.S.C. that I too will allow and hereby allow the appeal, set aside the judgment of both the trial High Court and the Court of Appeal, I endorse the consequential order of retrial and award of costs contained in the lead judgment of my learned brother, Uwais, J.S.C.

 

 

Appeal allowed.

 

Counsel

 

S.N. Harris-Eze

Director of Civil Litigation, Federal Ministry of Justice

  ........

For the Appellants

Professor S. A. Adesanya

With  A. Kuku, O. O. Eze and J. Amanze

  ........

For the Respondent