SAMUEL NWARIE v. DANIEL ADAKWA (2016)

SAMUEL NWARIE v. DANIEL ADAKWA

(2016)LCN/8412(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 23rd day of March, 2016

CA/K/535/2014

RATIO

CONTRACT: THE NATURE OF A CONTRACTUAL AGREEMENT

The relationship between the Appellant and the Respondent in this case is that of contract, and a contract is a promise or set of promises which the law will enforce. It is an agreement giving rise to obligations which are enforced or recognized by law. See COOP DEV, BANK PLC vs. EKANEM (2009) 16 NWLR (PT. 1168) 585. PER. UWANI MUSA ABBA AJI, J.C.A.

CONTRACT: EFFECT OF SIGNING AN AGREEMENT; WHETHER A PARTY THAT SIGNED A DOCUMENT IS ALLOWED TO RENEGE FROM THE POSITION HE HAD VOLUNTARILY CREATED B SIGNING SUCH DOCUMENT

It is trite that where a document is voluntarily signed by a person, the contents of such a document are binding on the signatory to it, and generally, no extrinsic evidence will be allowed to add to or reduce therefrom any of such contents. It will amount to injustice to allow such a person to renege from the position he had voluntarily created by signing such a document. The position is that a man must not be allowed to blow hot and cold with reference to the same transaction. In the instant case/ Exhibit MKA1, a document voluntarily signed by the Appellant was the foundation of the Respondent’s case. It would therefore amount to injustice to allow the Appellant to renege from the position he voluntarily created by signing Exhibit MKA1. See ODUA INVESTMENT CO. LTD. VS. TALOBI (1991) 1 NWLR (PT. 170) 761. and EZEUGO VS. OHANYERE (1978) 6-7. PER. UWANI MUSA ABBA AJI, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE AND ORAL EVIDENCE; WHETHER A DOCUMENTARY EVIDENCE CAN BE CONTRADICTED, ALTERED, ADDED TO OR VARIED BY ORAL EVIDENCE

Where there is any disagreement between parties to a written agreement on any particular point, the authoritative and legal source of information for the purpose of resolving that disagreement or dispute is the written contract executed by the parties. The reason for the stringent position of Section 128(1) of the Evidence Act, 2011 is to ensure that a party to a contract in writing does not change his position midstream in his undeserved advantage and to the detriment of the unsuspecting adverse party. The said Section 128(1) of the Evidence Act, 2011, for particularity and reference provides as follows:
When a judgment of a Court or any other judicial or official proceeding, contract or any grant or other disposition of property is been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.”
SeeLARMIE VS. D.P.M. & SERVICES LTD (2005) 18 NWLR (PT. 958) PG. 88 SC AT PAGE 469 PARAS A-B. PER. UWANI MUSA ABBA AJI, J.C.A.

PRACTICE AND PROCEDURE: SUMMARY JUDGEMENT PROCEDURE; WHAT CONSTITUTES A SUMMARY JUDGEMENT PROCEDURE

The Summary Judgment procedure, akin to the Undefended List procedure, as stated in the case of UBA v Jargaba (2007) 11 NWLR Part 1045 Page 247 at Page 272 Para E-H, per Tobi JSC, is a truncated form of hearing due to the absence of an issue to be tried. It is designed to secure quick justice and avoid the injustice likely to occur when there is no genuine defense on the merits to the Plaintiff’s case. The procedure is to shorten the hearing of a suit where the claim is for a liquidated sum.
The Summary Judgment procedure is to enable a Plaintiff whose claim is unarguable in law and where the facts are undisputed, and it is inexpedient to allow a Defendant to defend for mere purposes of delay, to enter judgment in respect of the amount claimed. See Macaulay v NAL Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283; (1990) 2 NSCC 433 at 460 lines 19-21 per Karibi-Whyte JSC. PER. UWANI MUSA ABBA AJI, J.C.A.

PRACTICE AND PROCEDURE: TRANSFER OF AN ACTION TO THE GENERAL LIST; CONDITIONS FOR AN ACTION TO BE TRANSFERRED TO A GENERAL CAUSE LIST

For an action to be transferred to the general cause list, there must be a defense on the merit and the details and particulars of defense must be set out. It must not be a half-hearted defense. It must not be a defense which is merely “fishing for skirmishes all over the place”. See United Bank for Africa V Jargaba Supra at 272-273 Paras H-H per Tobi JSC.
To be transferred to the general cause list for hearing, the Defendant must present a defence to the action on the merit. It is not enough for the Defendant merely to deny the claim or aver that some payments he made were not taken into account. He must set out the details and particulars of all such payments. Failure of a Defendant to set out a good defence satisfactory to the trial Court will result in the refusal of the Court to let him in to defend. See Okoli v. Morecab Finance (Nig.) Ltd (2007) 14 NWLR Part 1053 Page 37 at 65 Paras C, per Akintan JSC. I agree with the lead judgment that the Appellant’s Statement of Defence did not disclose sufficient facts to entitle him to defend the action. This appeal is therefore dismissed as lacking in merit. I subscribe to the order on costs as awarded in the lead judgment. PER. UWANI MUSA ABBA AJI, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

SAMUEL NWARIE Appellant(s)

AND

DANIEL ADAKWA Respondent(s)

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the summary judgment of Honourable Justice D.S. Wyom of the Kaduna State High Court sitting in Kaduna in suit No. KDH/KAD/374/2014 delivered on 20/10/2014; wherein the learned trial Judge granted all the reliefs sought by the Respondent

The Respondent by Paragraph 17 of the Statement of Claim at page 6 prays the lower Court for the reliefs sought as per the Writ of Summons dated 30/04/2014 as follows:-
“WHEREFORE the Plaintiff claims against the Defendant the following:
(a) The sum of N3,250,000 (Three Million, Two Hundred and Fifty Thousand Naira) only being the sum due to the Plaintiff from the Defendant in line with the agreement between the parties pursuant to a partnership arrangement entered into between the parties on the 27 of February, 2014.
(b) The sum of N83,000,00 (Eighty Three Thousand Naira) only, being the sum due to the Plaintiff from the Defendant pursuant to a further oral agreement between the patties made on the 2nd of March, 2013.
(c) The cost of this action.”

The facts that gave rise to this

appeal are that the Appellant approached the Respondent with intent to partnering in the School which the Appellant was the Proprietor. The parties entered into a partnership agreement by virtue of the signed papers dated 28/02/2014 to the effect that the Respondent contributed the sum of N2,500,000; which money the Appellant agreed to put into beefing up the capacity of the Queency International School, Ungwan Pama, Kaduna, a School over which the Appellant was a proprietor. It was also agreed that the partnership was to last for a period of one month, at the effluxion of which the Respondent was to receive his principal sum of N2,500,000 plus an interest of N750,000 which sum was going to be generated from the profit made out of the said partnership. At the Appellants failure to pay the sum of N3,250,000 as agreed by the parties, the Respondent shall take over title of proprietorship vested in the Appellant in the said Queency International Schools.

However at the expiry of time agreed upon by the parties, the Appellant pleaded for a week’s extension to enable him pay the sum due to the Respondent sequel upon which the Appellant issued two post-dated

cheques in the sum of N2,900,000 and N350,000 respectively to cover the Respondents amount due from the partnership. The Appellant also issued out to the Respondent an additional cheque in the sum of N83,000 to cover for the delay in payment which himself calculated as been additional profits due to the Respondent for the one week period he requested as extension. The Appellant later informed the Respondent not to present the said cheques for cashing as there was no money in the account. The Appellant also wrote a letter dated 22/4/2014 admitting the terms of the agreement but pleaded that he was willing and ready to fulfil any obligation on him as soon as the WAEC is over and renovation of the School took place. It is consequent upon the failure that the Respondent filed this suit under the summary judgment procedure for the reliefs mentioned above. Processes were filed and exchanged by the parties and judgment was entered in the respondent?s favour.

Being dissatisfied with the judgment of the lower Court, the Appellant appealed vide a Notice of Appeal dated 18/9/2014 and filed same date, with 4 grounds of appeal reproduced without their

particulars as follows:
GROUNDS OF APPEAL:
GROUND ONE
The learned trial Judge erred in law when he held that parties are bound by their contract but ignored the issue of illegality of the contract.
GROUND TWO
The learned trial Judge erred in law when he failed to realize that an agreement entered between both parties can be terminated by Force Majeure,
GROUND THREE
The learned trial Judge erred in law when he entered summary judgment in the sum of N3,250,000 and N83,000 in favour of the Plaintiff/Respondent in this case,
GROUND FOUR
The trial Judge erred when it awarded interest (called profits by the Plaintiff) when it was obviously wrong to do so.

In accordance with the rules of this Court, the Appellant?s Brief of argument dated 14/4/2015 was deemed properly filed on 16/4/2015, settled by A.C. Amaechi, EsQ, wherein a lone issue was formulated for the determination of the Appeal thus:
“Was the learned trial Court right in entering summary judgment in this suit, having regard to the issues raised in defense of the application for summary judgment and the provisions of the agreement between the

parties.?

The Respondent’s Brief of argument settled by Maxwell Kyon, Esq, was dated 20/4/2015 and filed 30/4/2015, therein learned Counsel formulated a sole issue for determination as follows:
“Whether the trial Court was right, in view of the entire facts/evidence placed before it, in entering judgment in favour of the Respondent herein.”

At the hearing of this appeal on 3/2/2016, learned Counsel for the Appellant adopted his Brief of argument and prayed this Court to allow the appeal, while the Respondent’s learned Counsel adopted his Brief as his argument in this appeal and urged the Court to dismiss the appeal.

This appeal will now be considered on the sole issue as framed by the Appellant thus:
“Whether the trial Court was right in entering summary judgment in this suit, having regard to the issues raised in defence of the application for summary judgment and the provisions of the agreement between the parties.”

It is the submission of the Appellant’s learned Counsel that the summary judgment entered by the trial Court was contrary to the specific and undisputed provisions of the agreement entered into by the parties

in this suit. That the agreement provided that if there was failure to pay the sum of N3,250,000, the Plaintiff/Respondent shall take over the title vested in the second partner (Appellant) in the said Queency International School. He placed reliance on LARMIE VS. D.P.M.S (2006) 3 MJSC 20 PG 24; A.G. FERRERO & CO, LTD VS, HENKEL CHEMICAL NIG LTD (2011) 5 – 7 MJSC (PT. 1) PG 55 AT 57 to the effect that the Court cannot rewrite or make a contract for the parties and cannot award an interest when it is not express or embodied in the contract.

It is contended further that from the agreement between the parties quoted above, that there was no room for the additional sum of N83,000 which the trial Court awarded in favour of the Respondent. That the agreement binds both parties and that the trial Court was in error by not applying the terms of the agreement on what the Respondent is entitled if the Appellant failed to meet up with his obligations under the agreement. He argued that the agreement clearly stipulates that the Respondent was entitled to a land and not the 3.8 million Naira the trial Court awarded in this case and that title to land

cannot be obtained by summary judgment. Again, learned Counsel maintained that the trial Court did not consider any of the defences raised by the Appellant prior to entering the summary judgment. He submitted further that the issue of whether the agreement was riped for enforcement, the issue of illegality force majeure, whether the partner was entitled to interest or profit and whether the profit is still payable even if the agreement was frustrated or delayed by an unexpected event were not considered by the trial Court before he entered the judgment. He relied on Order 11 Rule 5(1) and (3) Kaduna State High Court (Civil Procedure) Rules, 2007, to submit that the trial Judge ought to have given reason for unmeriting the Appellant’s defence. In conclusion, Counsel urged this Court, based on the above reasons to resolve the sole issue in his favour and allow the appeal.
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In response, learned Counsel to the Respondent submitted that the Appellant has sought to suggest in his Brief of argument that from the reading of the agreement, what was envisaged by the parties upon the failure of the Appellant to pay the sum due to the Respondent was that the

Respondent takes over the title vested in the Appellant in Queency International School and nothing more. Counsel argued that he spotted some few problems with the Appellant’s argument above to the effect that the Appellant never canvassed the said argument before the lower Court and hence it was never a live issue in respect of which that Court was called upon to deliver a ruling. He cited in reliance MKPEDEM VS. UDO (2001) FWLR (PT. 66) PG 827 PG 843 PARA E to argue further that the Appellant cannot raise the issue as no special circumstances have been alluded by the Appellant and no leave was sought and obtained to raise same. He relied on INCAR NIG PLC VS. BOLEX ENTERPRISES (NIG) (2001) FWLR (PT. 58) PG 1187 AT 1199; C.C.C.T.C.S VS. EKPO (2001) FWLR (PT. 82), PG 2058 AT 2011 PARA E-G. Learned Counsel, in the light of the foregoing urged this Court to discountenance the arguments proffered by the Appellant on whether or not the Respondent ought to have simply taken possession or title in the Queency International School rather than bring this action for summary judgment.
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He contended that assuming the issue so raised is to be considered by

this Court, the Respondent cannot resort to self-help to take over the title of the property. That the Respondent needs to establish before the Court his claim over the money before proceeding against the property listed in the agreement as the way out for the Respondent to recover his money and where the Appellant fails to make the payment as agreed. Therefore the Respondent acted within the ambit of the law. Counsel urged us to so hold.

Learned Counsel contended on the argument of the Appellant that the learned trial Judge was wrong to have awarded N83,000 in favour of the Respondent, that the issue was also never raised by the Appellant at the lower Court and therefore cannot be properly raised in this appeal. He heavily relied on INCAR NIG PLC VS. BOLEX ENTERPRISES (SUPRA). That assuming the Court overlooks the argument, Counsel submitted that the argument cannot avail the Appellant because there is nowhere in the Appellant’s defence before the lower Court that suggested that the facts as stated by the Respondent were not true with regards on how the Respondent came to be in possession of the cheque for N83,000. He maintained that the fact that

the Appellant barely denied in Paragraph 11 of his Statement of Defence would not help his case because mere denial cannot be sufficient to counter legal proof nor warrant this Court to set aside a finding entered on the said sum of N83,000. Counsel urged the Court to so find. Counsel insisted that the learned trial Judge considered all the defences raised by the Appellant in his Statement of Defence before arriving at his judgment in favour of the Respondent. He referred to pages 62 and 63 of the printed records wherein the trial Judge considered the defences raised by the Appellant but found that they did not disclose any defence, the basis of which he would find that there was need to hear the matter in the general cause list.

Finally, on the provisions of Order 11 Rule 5(1) and (3) of the High Court (Civil Procedure) Rules of Kaduna State cited by the Appellant to contend that the lower Court ought to have found that the Appellant had put forth a good defence worthy of consideration; the learned Respondent’s Counsel submitted that Order 11 Rule 5(1) and (3) should be read together with Rule 2 which the trial Judge relied upon to decide the matter

summarily. He urged the Court to affirm the judgment of the lower Court and dismiss the appeal as lacking in merit, and award costs in favour of the Respondent.

proceeding, contract or any grant or other disposition of property is been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.”
SeeLARMIE VS. D.P.M. & SERVICES LTD (2005) 18 NWLR (PT. 958) PG. 88 SC AT PAGE 469 PARAS A-B.

In this appeal, the claim of the Respondent who was Plaintiff in the lower Court was clearly stated on page 6 of the record and for ease of reference, I will reproduce same:
1. The sum of N3,250,000 (Three million, two hundred and fifty thousand Naira) only being due sum due to the plaintiff from the Defendant in line with the agreement between the parties pursuant to a partnership arrangement entered into between the parties on the 27th of February 2014.
2. The sum of N83,000,00 (Eighty three thousand Naira) only being the sum due to the Plaintiff from the

Defendant pursuant to a further oral agreement between the parties made on the 28th of March 2013.
3.The cost of this action.

The Respondent on the other hand in his statement of defence on page 46 of the record, particularly Paragraph 6 admitted the claim when he stated that:
“The Defendant in further response to Paragraph 4 of the Plaintiff’s statement of claim, state that it was the Plaintiff who stated that a partnership agreement should be entered into and that at the end of the agreement, the Defendant will repay the sum of N2,500,000,00 and 30% interest on the sum given.”

In further admission, Paragraph 9 of the Statement of Defence states that:
“The Defendant denies Paragraphs 10 and 11 of the Plaintiffs statement of claim and in response state that the agreement is caught by force majeure as the Plaintiff knows that the money he advanced has not been utilized because there was WAEC examination going on in the School and that has prevented the renovation and upgrading of the School, which was the principal reason the agreement was entered.”

It is therefore not in contention that the Respondent advanced the sum of

N2,500,000.00 with 30% interest to the Appellant as partners for the purpose of beefing up the capacity of Queency International School, Unguwan Pama, Kaduna. This piece of evidence is also contained in the joint venture (partnership) agreement between the Appellant and the Respondent.

The issue raised by the

Appellant that where there is failure to pay the sum of N3,250,000.00, the Respondent shall take over the title vested in the second partner (the Appellant) in the said Queency International School, and the N83,000.00 awarded by the learned trial Judge are being raised for the 1st time in this appeal. It did not form the basis of the action at the trial Court nor was it raised in the defence. The law is settled that an appellate Court will not normally allow a party to raise for the first time a fresh point or issue which was not taken in the Court below. Where however, a party wishes to raise on appeal a new issue not canvassed previously at the Court below, leave of the appellate Court is necessary as a condition precedent and a party ought to seek and obtain such leave before raising the new issue. See MKPEDEM VS. UDOM (2001) FWLR (PT. 66) PG 827 AT 843, INCAR NIG. PLC. VS. BOLEX ENTERPRISES (NIG) (2001) FWLR (PT. 58) PG 1187 AT 1199. C.C.C.T.C.S. VS. EKPO (2001) FWLR (PT. 82) P. 2058 AT 2071 PARAS, E-G. Therefore, since leave of this Court was neither sought nor obtained, to raise it herein, is incompetent and accordingly struck out.
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This position

of the law was rightly canvassed by Counsel to the Respondent. Furthermore, by the community reading and effect of Order 11 Rule 5(1)(2) and (3) of the High Court (Civil Procedure) Rules, 2007, Kaduna State, it is expressly inferable and legally discernible that judgment can be entered where the Defendant “has no good defence to the claim” thereto or where the Defendant has “no defence to other part of the claim .” For clarity and comprehensiveness, Order 11 Rule 5(1)(2) and (3) of the High Court (Civil Procedure) Rules, 2007, Kaduna State provides as follows:
(1) Where it appears to a judge that a Defendant has a good defence and ought to be permitted to defend the claim, the judge may grant the Defendant leave to defend the claim,
(2) Where it appears to a judge that the Defendant fails to comply with the provision of Rule 4 of this Order or it appears to the judge that the Defendant has no good defence to the claim, the judge may enter judgment for the Plaintiff,
(3) Where it appears to a judge that the Defendant has a good defence to part of the claim but no defence to other part of the claim, the judge may thereupon enter judgment for the

part of the claim to which there is no defence and grant leave to defend that part to which there is a defence.

Under the summary judgment procedure and pursuant to the above stated Order 11 Rule 5, before a Defendant is let in to defend his defence, he must satisfy the following:
(a) Condescend upon particulars as far as possible deal specifically with the Plaintiffs claim and affidavit and state clearly and concisely what the defence is, and what facts are relied on as supporting it.
(b) Where the defence is that the Defendant is not indebted to the Plaintiff, state the grounds on which the Defendant relies showing that he is not indebted and a mere general denial that the Defendant is not indebted with not suffice.
(c) Where the affidavit states that the Defendant is not indebted to the Plaintiff in the amount claimed or any part thereof state why the Defendant is not so indebted, and so state the real nature of the defence relied on,
(d) Where the defence relied on is fraud, state the particulars of fraud and a mere general allegation of fraud is useless.
(e) If a legal objection is raised, state clearly the facts and the

points of law arising therefrom
(f) In all cases give sufficient facts and particulars to show that there is a bona fide defence.
(g) A case of hardship that creates no enforceable right e.g past promise by Plaintiff unsupported by valuable consideration or a mere inability to pay or an allegation that the Plaintiff has given time for payment which of course constitute no defence unless there be consideration will not constitute defence on the merit.
See LEWIS VS. UBA PLC (2006) 1 NWLR (PT. 962) 546 MACAULEY vs. NAL MERCHANT BANK LTD (1990) 4 NWLR (PT. 144) 283.

Thus, on the strength of the above stated principle, the learned trial Judge found on page 63 of the record from line 5 that:
“The Defendant did not disclose in his affidavit any convincing reason to warrant a defence for the Defendant to be allowed to defend; his affidavit must of necessity disclose facts which will at least throw some doubt in the case of the Plaintiff, A mere general denial as in the instant case, therefore, of the Plaintiffs claim and affidavit is devoid of any evidential value and which would not serve sufficient enough to throw such doubt on the

Plaintiff’s claim?”

The learned trial Judge further stated that:
“For the Defendant to show that he has a good defence to the claim on the merit, he must disclose facts to satisfy the Court. To achieve this, he is required to condescend upon particulars and the defence must not be seen as frivolous.”

It is expected of the Appellant as the Defendant at the lower Court to have established or shown either through his Statement of Defence that he was entitled to a defence on the merit the defence which ought to have been an embodiment of the counter-affidavit in response to the affidavit in support of the summon for the summary judgment.

I have closely examined and considered the Statement of Defence of the Appellant especially at Paragraphs 5,6,8,9,10 and 11, the cumulative perusal of same amounted to a general denial of the deposition on the Respondent?s assertion. These paragraphs are hereby reproduced for ease of reference:
“5. The defendant admits Paragraph 4 of the plaintiff’s statement of claim, to the extent only that the plaintiff needed money to renovate and upgrade his school.
6. The defendant in further

response to Paragraph 4 of the plaintiff’s statement of claim, state that it was the plaintiff who stated that a partnership agreement should be entered into and that at the end of the agreement, the defendant will repay the sum of N2,500,000.00 and 30% interest on the sum given. This provision for payment of interest made the agreement illegal,
PARTICULARS OF ILLEGALITY
(a) That the plaintiff has not licence to operate as a money lender.
(b) That the plaintiff charged interest on the loan,
(c) Changing the word interest in the written agreement to profit in the processes filed by the plaintiff is changing the content of the agreement, a conduct prohibited by the evidence act.
8. The defendant denies Paragraphs 7, 8 and 9 of the plaintiff’s statement of claim and in response state that the plaintiff was never skeptical, about the agreement but only suggested that the agreement be put in writing before a lawyer and the defendant agreed to that.
9. The defendant denies Paragraphs 10 and 11 of the plaintiff’s statement of claim and in response state that the agreement is caught by force majeure as the plaintiff knows that the

money he advanced has not been utilised because there was WAEC examination going on in the school and that has prevented the renovation and upgrading of the school, which was the principal reason the agreement was entered.
10. The defendant denies Paragraph 12 of the plaintiff’s statement of claim and in response state that going by the dates of the two cheques, the defendant issued them in anticipation that the contract would be executed but unfortunately it could not due to the force majeure as stated above,
11. The defendant denies Paragraphs 13, 14,15, 16 and 17 of the plaintiff’s statement of claim. The defendant wrote a letter (through his counsel) informing the plaintiff of the force majeure which caught up with the agreement and the plaintiff never replied which made the defendant to believe the plaintiff has accepted the force majeure that intervened. The letter dated 22/4/2014 is hereby pleaded
The defendant avers further as follows:
1. That the partnership agreement entered by the plaintiff is illegal and therefore unenforceable.
2. That the agreement leading to this suit is not yet ripe for execution as the force majeure

raised by the defendant has forced the extension of the agreement from the initial date for execution to July 2014 when the WAEC and NECO Examination must have been concluded.
3. That the present case itself is not ripe for commencement as the plaintiff never replied the letter written by the defendant through his lawyer asking for extension of the commencement of the agreement after stating reasons which made the defendant not to meet up with the initial date for execution of the agreement.
4. That the refusal of the plaintiff to reply the letter dated 22/4/2014 is an admission of the force majeure raised by the defendant.

Both parties are in agreement as to the partnership agreement between them, and in the Statement of Defence, the Appellant admitted the sum of N3,250,000.00 with 30% interest. The Appellant’s Statement of Defence did not disclose sufficient facts to entitle him to defend the action. The Court also correctly interpreted and followed judicial decisions and authorities of the higher Courts. It is therefore right that the trial Court proceeded to enter judgment in favour of the Respondent in terms of their Writ of Summons

and Statement of Claim.

On the totality of the appeal, same lack merit as the lone issue is resolved against the Appellant. The appeal is therefore dismissed while the judgment of the learned trial Court is hereby affirmed. There shall be costs of N50,000.00 to the Respondent.

IBRAHIM SHATA BDLIYA, J.C.A.: I have read the lead judgment of my Lord and learned brother, Uwani Musa Abba-Aji J.C.A. His lordship has dealt with all the issues raised in the appeal comprehensively and satisfactorily. I have nothing useful to add thereto other than to agree and adopt the reasonings and conclusion as mine in dismissing the appeal for being unmeritorious. The judgment of the lower Court delivered on the 20th of October, 2014, in suit NO. KDH/KAD/374/2014 is hereby affirmed. I endorse the order made on costs.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had the privilege of reading in advance the lead judgment of my learned brother, Uwani Musa Abba-Aji JCA. I agree with His Lordship’s reasoning and conclusion that the Appellant’s appeal is devoid of merit.
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The Summary Judgment procedure, akin to

the Undefended List procedure, as stated in the case of UBA v Jargaba (2007) 11 NWLR Part 1045 Page 247 at Page 272 Para E-H, per Tobi JSC, is a truncated form of hearing due to the absence of an issue to be tried. It is designed to secure quick justice and avoid the injustice likely to occur when there is no genuine defense on the merits to the Plaintiff’s case. The procedure is to shorten the hearing of a suit where the claim is for a liquidated sum.
The Summary Judgment procedure is to enable a Plaintiff whose claim is unarguable in law and where the facts are undisputed, and it is inexpedient to allow a Defendant to defend for mere purposes of delay, to enter judgment in respect of the amount claimed. See Macaulay v NAL Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283; (1990) 2 NSCC 433 at 460 lines 19-21 per Karibi-Whyte JSC.

272-273 Paras H-H per Tobi JSC.
To be transferred to the general cause list for hearing, the Defendant must present a defence to the action on the merit. It is not enough for the Defendant merely to deny the claim or aver that some payments he made were not taken into account. He must set out the details and particulars of all such payments. Failure of a Defendant to set out a good defence satisfactory to the trial Court will result in the refusal of the Court to let him in to defend. See Okoli v. Morecab Finance (Nig.) Ltd (2007) 14 NWLR Part 1053 Page 37 at 65 Paras C, per Akintan JSC.

I agree with the lead judgment that the Appellant’s Statement of Defence did not disclose sufficient facts to entitle him to defend the action. This appeal is therefore dismissed as lacking in merit. I subscribe to the order on costs as awarded in the lead judgment.

Appearances

E.K. TARFA, ESQ.For Appellant

AND

MAXWELL KYON, ESQ. WITH ABDULLAHI BELLO, ESQ., AND U.S SHEHU, ESQ.For Respondent