A.B.U. v. VTLS INC (2020)

A.B.U. v. VTLS INC

(2020)LCN/14820(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Monday, November 30, 2020

CA/K/71/2020

RATIO

INTERPRETATION: CARDINAL PRINCIPLE FOR THE INTERPRETATION OF CONTENTS OF DOCUMENTS

The Cardinal principle for the interpretation of the contents of documents as in statutes are the same. The Apex Court has held in Ogbonna v. Attorney-General of Imo State (1992) LPELR-2287 (SC) that:
“it has long been established, and all Courts have always observed the practice that the principles of interpretation of documents are the same as in the interpretation of statutes. See Curtis v. Stovin (1889) 22 QBD 513. I think this has to be so since in either case the construction is with respect to the recognition of legal rights and the enforcement of legal duties. True, like Statutes which are interpreted in the circumstances in which they were enacted, documents are to be construed in the light of the circumstances on which they are drawn up- Ashibuogwu v. Bendel A. G (1988) 1 SCNJ at P. 133; (1988) 1 NWLR (Pt. 69) 138 Per Karibi-White, JSC (as he then was).”
The law lord went further and held:
“I think it is ordinary common sense that when the language used is not only plain but also admits of only one meaning, the task of interpretation can hardly be said to arise… the rules of construction require giving words their ordinary natural meaning and to adhere to same where such meaning is sensible”.
See further, the decision in W. T. Ejuetami v. Olaiya & Anor (2001) LPELR-1072 (SC) (pages 23-24 paras F-C). PER HUSSAINI, J.C.A.

JURISDICTION: DUTY OF COURT TO GUARD ITS JURISDICTION JEALOUSLY

I am talking about the decision in the case of Sonnar Ltd v. Nordwind (1987) 4 NWLR (Pt. 66) 520 where Oputa, JSC observed at page 576 thus:
“Our Court should not be too eager to diverst themselves of jurisdiction conferred on them by the constitution by other laws simply because parties in their contracts choose a foreign forum and a foreign law. Courts guard rather jealously their jurisdiction and even where there is an ouster of that jurisdiction by statute it should be by clear and unequivocal words. If that is so, as indeed it is, how much less can parties by this private acts remove the jurisdiction properly and legally vested in our Courts? Our Courts should be in charge of their own proceedings. When it is said that parties can make their own contracts and that the Courts will only give effect to their intentions expressed in and by their contracts, that should generally be understood to mean and imply a contract which does not rob the Courts of its jurisdiction in favour of another foreign forum.” (emphasis supplied to the words underlined) PER HUSSAINI, J.C.A.

Before Our Lordships:

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

AHMADU BELLO UNIVERSITY APPELANT(S)

And

VTLS INC RESPONDENT(S)

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling and the Judgment delivered at the High Court of Kaduna State, holden in Zaria on the 11th December, 2019 vide suit No. KDH/KAD/1321/2018.

The Respondent had commenced action at the said High Court vide the Writ of Summons and the Statement of Claim dated the 18th December, 2018 wherein they claimed against the Appellant, then defendant, the sum of $18,103.00 (USD) being due and unpaid software licensing fee owed by them by virtue of the agreement between the parties dated 12th day of June, 2013. They also claimed interest on the Judgment sum at the rate of 10% per annum until it is fully liquidated and cost of the action.

Also filed along with the Writ of Summons and the statement of claim is the Motion on Notice for Summary Judgment under Order 11 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules, 2007, in terms of the reliefs sought in the Writ of Summons and the Statement of Claim.

The Motion on Notice for Summary Judgment had in support, an affidavit of 16 paragraphs to which are attached, some documents marked as Exhibits. The

Respondent further filed a Written address in support of the Motion on Notice for Summary Judgment.

The Writ of Summons, the Statement of Claim, the Motion on Notice for Summary Judgment were all served on the Appellant along with all other relevant processes of Court hence the Appellant, filed conditional appearance along with a Statement of defence and Counter affidavit out of time, with leave of Court first granted on the 13th March, 2019. See page 119 of the record of appeal. The Motion for Summary Judgment was moved or argued on the 30th July, 2019 and the case was adjourned to the 26th, September, 2019 for consideration. However by the Ruling delivered on the 11th December, 2019, the trial High Court had reason to grant the reliefs, the Plaintiff/Respondent had sought in terms of the reliefs contained in the application for Summary Judgment. The trial Court in consequence, entered judgment in favour of the Respondent.

The facts leading to the case being filed are quite simple and straight forward. The parties herein entered into maintenance service agreement which provide form a clause for the automatic renewal of the maintenance service

agreement unless either of the parties to it, by a Notice of 90 days served on the other side, has indicated her intention not to renew the agreement. There was no such Notice of termination being given or served as demanded by the relevant clauses in that Agreement and thus, the Agreement renewed itself.

Respondents in obedience to the Articles of the agreement demanded for the payment of the fee due and arising from the automatic renewal of the agreement Respondents thereafter instituted action against the Appellant for the claim of the sum as per the Writ of Summon and the Statement of claim. By the Motion on Notice for Summary Judgment filed along with the Writ of summons, the Respondents sought for an order in terms of the claim in Writ of Summons and Statement of Claim so far as the defendant/appellant had no reasonable defence to the action.

The trial Court in its ruling delivered on 11th December, 2019 saw reason with the Respondents and thus entered Judgment in their favour under the Summary Judgment Procedure.

The Appellant has appealed to this Court against that Ruling and order by reason of the Notice of Appeal filed on 16th

December, 2019, on three (3) grounds. The three (3) grounds, excluding the particulars are set out below:-
GROUND 1
The trial Court erred in law thereby occasioned a miscarriage of justice when it entered judgment on behalf of the Respondent by way of Summary Judgment procedure instead of transferring the matter to the General Cause List for the purpose of hearing and determination of the suit in the interest of justice.
GROUND 2
The trial Court erred in law thereby occasioned a miscarriage of justice when it held as follows: “…the defendant did not in any away deny the existence of contract between the parties neither did they deny the contract sum…”
GROUND 3
The trial Court erred in law thereby occasioned a miscarriage of justice when it assumed jurisdiction to hear the Respondent’s case before it.

Record of Appeal having been transmitted on 10th February, 2020, parties thereafter filed and exchanged their briefs of argument, in terms of:-
(1) Appellant’s brief of argument filed on the 25th March, 2020.
(2) Respondents brief of argument filed on the 8th July, 2020.

(3) Appellant’s Reply brief of argument filed on 13th July, 2020.

Learned counsel respectively, adopted their briefs of argument at the hearing, which came up on the 16th September, 2020. The Appellant through their counsel, has urged us to allow this appeal and set aside the judgment of the Court below. In the alternative, we were urged to remit the case to another judge of the State High Court for hearing de novo. The Respondent, arguing per contra, urged us to dismiss this appeal.

The Appellant vide the brief of argument filed on their behalf has formulated three (3) issues for determination thus:
“(a) Whether having regard to the provisions of Articles 12 and 13 of the Agreement dated 12th June, 2013 entered between the parties herein, the lower Court possess the requisite jurisdiction to try and determine the instant suit. (Distilled from Ground three).
(b) Whether the lower Court was right when it entered judgment on behalf of the Respondent by way of summary judgment procedure instead of transferring the case to the General Cause List for the purpose of hearing and determination on the merit (Distilled from Ground One).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(c) Whether the Lower Court was right when it held that the Defendant (Appellant) did not in any way deny the existence of contract between the parties neither did they deny the contract sum. (Distilled from Grounds two).”

Respondent has adopted the said three (3) issues formulated in the Appellant’s brief of argument. Before addressing the real issues presented in this appeal, permit me to consider arguments or submissions made by counsel over those issues.

COUNSEL’S SUBMISSIONS
ISSUE NO. 1
Whether having regard to the provisions of Articles 12 and 13 of the Agreement dated 12th June, 2013 entered between the parties herein, the lower Court possess the requisite jurisdiction to try and determined the instant suit. (Distilled from Ground three).
It has been argued for the Appellant that by reason of Articles 12 and 13 contained in the agreement signed between the parties entitled “VTLS Inc. Software Maintenance and Enhancement Management Support (AMS)” the High Court of Kaduna State had no jurisdiction over the matter since it is the Laws of the Commonwealth of Virginia “SA that is applicable to

the transaction while any action arising under or from that agreement are to be instituted in the Court sitting in Virginia, USA. It is submitted that the parties to the agreement i.e the parties herein have agreed to exclude the Laws and the Courts of Nigeria. Citing therefore the decision of the Supreme Court, Per Galadima, JSC (as he then was) in Idufueko v. Pfizar Products Ltd (2014) 12 NWLR (Pt. 1420) 96, 115 and a host of other cases, it was submitted that parties are bound by the terms of the contract entered by them. It is argued that the issue of Jurisdiction, being a crucial and radical question, obliterates whatever action or decision that ought to be taken by a Court if the Court lacked jurisdiction over the matter. We were urged to so hold in relation to this case on appeal. Learned Appellant’s counsel in coming to this conclusion had cited and relied on the decisions in Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1448) 123, 156; SPDC Nig. Ltd v. Anaro (2015) 12 NWLR (Pt. 1472) 172, 185.

For the Respondent, it was argued per contra on this point, with reference to the same Articles 12 and 13 of the Agreement that the trial High Court

below indeed has jurisdiction and it properly exercised it to reach the conclusion as it did. With particular reference to Article 12 of the Article of the Agreement, it was argued that clauses such as Article 12 are common features in all agreements with international flavour but all these notwithstanding, the Courts of the land cannot be deterred from exercising jurisdiction over such cases except in cases or situation where those exclusionary clauses were themselves capricious or absurd and are shown to be so. On this point we were referred to the decisions in L.A.C v. AAN Ltd (2006) 2 NWLR (Pt. 963) 340 and Sonnar Ltd v. Nordwind (1987) 4 NWLR (Pt. 66) 520. It is argued that the Appellant has not brought their case within the exceptional circumstances identified in L.A.C v. A A N Ltd (supra) hence they cannot be heard to say that the Court below lack jurisdiction over the case before it. We were urged therefore to discountenance Appellant’s argument in relation to Article 12 of the Agreement.

With regard to Article 13 of the Agreement, it was argued that the said Article 13 relates to recovery of debts and actions such as the one filed at the

Court below by the Respondent, are excluded from instance of limitation and jurisdiction. Learned Respondent’s counsel relying therefore on the decision in LAC v. AAN Ltd and Sonner Ltd v. Nordwind (1987) 4 NWLR (Pt. 66) 520 has argued that the trial Court was competent to entertain and adjudicate on recovery action as filed by the Respondent against the Appellant who was in breach of contract and payment default. We were urged to give effect to the plain, clear and obvious meaning as conveyed by Article 13 of the Agreement. He relied on the decision in Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550, 583.

It is further submitted that even in cases where the meaning of words used in contract documents or statutes are not clear, the Courts, in the exercise of the inherent powers vested in it are allowed to discover the intention of the parties to the contract so as to discern whether by that contract document, it is the intendment of the parties thereto that simple cases for recovery of debt should be filed in the Commonwealth Court of Virginia in the United States of America, (USA) and not in the local Court or place where the contract was

concluded.

In further reference to Articles 12 and 13 of the Agreement, we were urged to hold that by the Community reading of the two clauses it is only the local Courts that can exercise jurisdiction over this matter. We were urged to so hold.

The disputants in this appeal, it would appear, are not on the same page over the interpretation, meaning and application of Articles 12 and 13 of the Articles of Agreement contained in the contract document, a document title: VTLS Inc. SOFTWARE MAINTENANCE AND ENHANCEMENT AGREEMENT ACCOUNT MANAGEMENT SUPPORT (AMS) signed or executed by them on the 12th June, 2013. This document defines the contractual relationships between the parties therein, that is, the parties before us. Articles 12 and 13 in particular, of the Articles of Agreement, provide as follows:-
“ARTICLE 12
GOVERNING LAW: The Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, USA without regard to the principle of conflicts of any jurisdiction.”
“ARTICLE 13
With the exception of an action or suit for the Licensee’s failure to make any payment

required hereunder when there was no suit or action arising under this Agreement may be brought more than one (1) year following the occurrence giving rise thereto. All suits and actions arising under this Agreement shall be brought in the Commonwealth of Virginia, USA and License hereby submits to the jurisdiction of the Courts of the Commonwealth of Virginia and the United States District Courts Sitting in Virginia.”

Given the provisions in Articles 12 and 13, I am made to believe that the said Articles read together can only give rise to two (2) categories of suits. The first category of cases are suits or actions which can be initiated for the recovery of debts arising from the failure of the licensee (the Appellant in this case) to make payments as at when due in accordance with the provisions of that Agreement. It is worthy of note that this type or category of cases can, under the agreement be initiated even after One(1) year from the due date, that is, the date the debt became payable unlike in other actions or suits. The second category of cases are suits or actions other than suits initiated for the recovery of debts as in (1) above.

However in this second category of cases, action cannot commence in relation thereto after the expiration of One (1) year from the date the event took place. Such cases are simply caught up on account of time lag arising from that Agreement.

The question which demand an answer is whether the local Courts as in the Court below, can sit in exercise of jurisdiction over any of those category of cases mentioned above without offending the letters of the Agreement signed between the parties herein on the 12th June, 2013, having regard, in particular, to the provisions of Articles 12 and 13 which identified the applicable laws and the venue for the resolution of any conflict in the event of any disagreement between the parties to the contract.

(1889) 22 QBD 513. I think this has to be so since in either case the construction is with respect to the recognition of legal rights and the enforcement of legal duties. True, like Statutes which are interpreted in the circumstances in which they were enacted, documents are to be construed in the light of the circumstances on which they are drawn up- Ashibuogwu v. Bendel A. G (1988) 1 SCNJ at P. 133; (1988) 1 NWLR (Pt. 69) 138 Per Karibi-White, JSC (as he then was).”
The law lord went further and held:
“I think it is ordinary common sense that when the language used is not only plain but also admits of only one meaning, the task of interpretation can hardly be said to arise… the rules of construction require giving words their ordinary natural meaning and to adhere to same where such meaning is sensible”.
See further, the decision in W. T. Ejuetami v. Olaiya & Anor (2001) LPELR-1072 (SC) (pages 23-24 paras F-C). No doubt the wordings of articles 12 and 13 do not admit of any ambiguity. The authors of those articles of agreement took their time to write the Agreement in a clear ordinary and plain language. It is on

account of this, the learned counsel for the Appellant argued and urged us to give effect to those words as in the agreement, lawfully and voluntarily entered into by the parties herein on the principle of PACTA SUNT Servanda, citing in support the decision in Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt. 1420) 96, 115. The Court in that case, held that parties are bound by the terms and conditions governing the contract between them.
To go by those submissions made by the learned counsel to the Appellant, given the unambiguous wordings of Articles 12 and 13, will mean that the trial Court below lack the jurisdiction to entertain the matter as it did given the underlying principle in the law of contract that agreements must be respected. This principle or doctrine has been expressed in the latin maxim as PACTA SUNT SERVANDA, so far as these agreements are not contrary to the law nor fraudulently entered into, should be adhered to in every manner and in every detail. I am however, guided by the decision of the Apex Court in matters such as this. I am talking about the decision in the case of Sonnar Ltd v. Nordwind (1987) 4 NWLR (Pt. 66) 520 where

Oputa, JSC observed at page 576 thus:
“Our Court should not be too eager to diverst themselves of jurisdiction conferred on them by the constitution by other laws simply because parties in their contracts choose a foreign forum and a foreign law. Courts guard rather jealously their jurisdiction and even where there is an ouster of that jurisdiction by statute it should be by clear and unequivocal words. If that is so, as indeed it is, how much less can parties by this private acts remove the jurisdiction properly and legally vested in our Courts? Our Courts should be in charge of their own proceedings. When it is said that parties can make their own contracts and that the Courts will only give effect to their intentions expressed in and by their contracts, that should generally be understood to mean and imply a contract which does not rob the Courts of its jurisdiction in favour of another foreign forum.” (emphasis supplied to the words underlined)
This Court in the case of LAC v. A A N Ltd (2006) 2 NWLR (Pt. 963) 40 made pronouncements similar to those in Sonnar Ltd v. Nordwind (supra).
By reason of Section 6(1)(2)(6)(b) of the Constitution of FRN, 1999 (as amended)

the judicial powers vested in the Courts “extend to all matters between persons or between Government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”. Consequently, no person or group of persons by their own private treaty or arrangements can agree to oust the jurisdiction and provisions vested in the Courts by the Constitution. Even where such clauses are put in place in or as a contract with international flavour to rob the Courts of the land of jurisdiction in favour of another foreign forum, the Courts of the land are obliged to apply the blue pencil rule to severe those clauses from the contract or ignore same by virtue of the Constitutional provision which confer on the Court, the jurisdiction and power to entertain those cases.
Talking about the jurisdiction of the Courts, the Court below, by virtue of Section 272 of the Constitution of Federal Republic of Nigeria, 1999 (as amended) has jurisdiction to entertain cases such as recovery of debts, as in the

instant case on appeal. It is for this reason that clauses in the likes of Articles 12 and 13 in the Article of the Agreement should be ignored when determining the rights and liabilities between the parties herein in matters such as this and the trial Court took the right approach when it discountenanced same to reach the conclusion that it did.
In any case, is it for the recovery of the sum of $18,103, (USD) only claimed by the Respondents, that parties herein are required, by that contract or agreement to submit themselves to a foreign forum in Virginia, USA for adjudication of their case, without consideration of the concomitant procedural difficulties attendant thereto, as for instance, of having to return the case to Nigeria, the place where the contract was concluded initially, to register the judgment obtained at that foreign forum, in Virginia, USA, to be enforced in Nigeria? I think the Courts in Nigeria, fully seized of the case, will in the exercise of its discretion refuse the request to refer the case to a foreign forum for adjudication. It is for all the reasons already expressed in this discourse that I hold the firm view that the trial

Court was competent or is competent when it entertained and adjudicated over the recovery suit or action filed by the Respondent against the Appellant, hence Issue No. 1 is resolved against the Appellant.

“ISSUE NO.2
Whether the lower Court was right when it entered judgment on behalf of the Respondent by way of summary judgment procedure instead of transferring the case to the General Cause List for the purpose of hearing and determination on the merit (Distilled from Ground One).
ISSUE NO. 3
Whether the Lower Court was right when it held that the Defendant (Appellant) did not in any way deny the existence of contract between the parties neither did they deny the contract sum. (Distilled from Grounds two).”
Issue Nos. 2 and 3 are intertwined and need to be taken together. In arguing issues 2 and 3 together it was submitted that the Appellant cannot be held liable to Summary Judgment Procedure since the Respondent did not provide maintenance services as outlined under Article 6.1-6.5 of the terms of Agreement. In the absence of such services being rendered, the Respondent, it is argued, is not entitled to the sum of

$18,103.00 (USD) hence the trial Court was in error when it failed to transfer the suit to the General Cause List since the Appellant had by their counter-affidavit shown that there were triable issues to be thrashed out at the hearing.

In the brief of argument filed on the 8/7/2020, the Respondent disagreed with those submissions made by the Appellant. At pages 12 -15 the Respondent in their brief have argued per contra, stating that the maintenance fees of $18,10300 (USD) become due only upon automatic renewal of the agreement on the 1st May, 2018, after the expiration of the prepaid five (5) years period. The Appellant, it is argued did not make this payment even when they were served with invoice for payment. He argued that upon proper construction of the articles of the agreement, it is wrong for the Appellant to conclude that maintenance services were pre-conditional to payment. It is further urged for the Respondent, that by the letter issued by the Appellant through the librarian on the 21/11/2018, is a clear affirmation of their indebtedness to the Respondent in the sum claimed hence the Appellant cannot now say that the Respondent was required

to provide maintenance services before payments can be made. Rather the Appellants are only entitled to the services listed under Article 6 after payment and as the Appellant failed or refused to make the payment, they were in breach of payment terms of the auto renewal contract. We were urged to so hold and thus, affirm the decision of the Court below.

I would want to ask a few questions. What are the contractual terms as agreed to by the parties herein? Is the Appellant required to make payments immediately after the automatic renewal of the contract as contended by the Respondent or must maintenance services be undertaken first before payment?

The issue(s) in contention revolve around the automatic renewal of the agreement after the expiration of the prepared maintenance period. I have considered the provisions under Articles 4, 5 and 6 of the Articles of the agreement referred to and relied upon by the Appellant in their brief of argument which relate to the issue in hand. Those provisions, no doubt, are written in very clear language and it should not be my worry to give affect to them but for the fact that parties herein, in the submission

made by them, have joined issues over the meaning and interpretation of those clauses in the Articles of Agreement. For the avoidance of doubt, I am constrained to reproduce Articles 4, 5 and 6 of the Articles of Agreement which are as follows:
“ARTICLE 4: TERM OF AGREEMENT
This Agreement shall continue in full force and effect from 1st May, 2013 through 30th April, 2018 (the prepaid maintenance period), after which it shall automatically renew for one (1) year Maintenance Renewal Periods as described in 5.1 unless terminated by either party by the giving of written notice to the non-terminating party on or before ninety (90) days prior to the end of the Maintenance Renewal Period or unless the Agreement is earlier terminated pursuant to the provisions of Section 8 below.
ARTICLE 5: MAINTENANCE FEES; PAYMENT TERMS
IN CONSIDERATION OF THE PROVISION OF MAINTENANCE SERVICE HEREUNDER, LICENSEE AGREES TO PAY TO VTLS INC. THE ANNUAL MAINTENANCE FEES SPECIFIED IN APPENDIX A HERETO (“MAINTENANCE FEES”). Maintenance Fees are subject to adjustment annually to reflect the actual and reasonable costs of VTLS Inc. except where

maintenance is prepaid. Effective 1st May 2018 maintenance fees become subject to this Section 5.
5.1: Maintenance Renewal Periods begin upon termination of the prepaid maintenance period (30th April, 2018) and continue for periods of twelve consecutive months.
5.2: Under the terms of this agreement, maintenance fees are to be prepaid for a period of five (5) years from the date of installation providing full coverage through 30th April, 2018. Once all initial payments are made, maintenance will not be invoiced until 1st May 2018 which time Maintenance Fees, at the then-current price, shall be invoiced annually in advance. All payments shall be made within thirty (30) days of receipt of an invoice. Licensee agrees to pay VTLS Inc. a charge of one and one-half percent (1½%) per month on all overdue balances. Licensee agrees to pay VTLS Inc.’s actual attorneys’ fees, costs and expenses of collection in the event VTLS Inc. retains counsel to collect any amount due under the Agreement.
ARTICLE 6: SERVICES
VTLS Inc. shall provide the maintenance services described in Clauses 6.1-6.5 with respect to the latest release of the

Licensed Software. Licensee will receive both routine and emergency support in the form of software upgrade, bug fixes and access to Customer support Librarians and Technical Analysts through e-mail, telephone and fax. These services are available as soon as installation is complete, and continue as long as maintenance fees are paid. Maintenance renewal is due upon termination of the prepaid maintenance period and each year thereafter. Upon renewal of annual maintenance VTLS provides additional Account Management Support (AMS) options that all each customer to select a program that best meets their needs. These additional programs are provided at additional cost.”

It is clear to me thus, that by those terms, the original agreement renewed itself for another one (1) year at the expiration of 5 years, beginning from 1st May, 2013 to 30th April, 2018. The new agreement which now takes effect from the 1st May, 2018 and run for another 1 year from that date except of course either party before the expiration of the initial agreement, by a written Notice, chose to terminate the agreement, in which case, a renewal period of 1 year to commence from 1st May,

2018, can no longer arise. In absence of any such notice of termination of the existing agreement being made or shown, the contract or the agreement renews itself along with all other existing duties hence it is obligatory on the parties to observe their respective duties, whether financial or otherwise, as dictated by the Articles of Agreement, in particular, under Articles 5.1 and 5.2 and Article 8. The Appellant thus, is required to pay in advance under the automatic renewal clause, the fee or charge for the renewal of the maintenance agreement for that period of renewal, being one (1) year, upon being served with an invoice calling for payment. The payment shall be made not later than 30 days on the receipt of that invoice. That briefly summarises the nature of the agreement which the Appellant and the Respondent voluntarily signed on the 12th June 2013. These terms are binding on them and it is not at this stage, the Appellant can vary those contractual terms.

Given the maintenance renewal fee as specified at Appendix A to the Articles of Agreement and endorsed by the Appellant at the time of signing the Agreement, the Appellant cannot now resile

from it. There is nowhere in the agreement, it is provided that maintenance services shall be provided for, before payment can be made as alleged by the Appellant hence the submission so made is clearly outside the terms of that Agreement and the same cannot therefore, be the basis for the claim or the contention or the submission that there are triable issues which ought to be thrashed out at full trial. There is none as far as the facts in this case have shown.

The procedure for Summary Judgment under Order 11 of the High Court (Civil Procedure) Rules of Kaduna State is meant to dispose with dispatch, cases which are virtually uncontested. It also applies to cases where there can be no reasonable doubt that a Plaintiff is entitled to Judgment. The procedure is meant to shorten the hearing of a trial where the claim is for a liquidated sum as in the instant case on appeal. There are limitless authorities on this point but see IBWA Ltd v. Unakalamba (1998) 9 NWLR (Pt. 565) 245; Co-operative and Commerce Bank v. Samed Investment Coy. Ltd.(2000) 4 NWLR (Pt. 651) 19; BON v. Intra Bank SA (1969) 1 All NLR 91; UBA Plc & Anor. v. Jargaba (2007) 11 NWLR

(Pt. 1085) 247, 220 OR (2007) LPELR – 3399 (SC); Thor Ltd v. FCMB Ltd. (2005) 74 NWLR (Pt. 946) 696, 770 – 727; Wema Securities & Finance v. Nigerian Agricultural Insurance Co. (2015) 76 NWLR (Pt. 7484) 93, 140 – 147; Dauda Haliru v. Unity Bank (2016) LPELR – 41608 (CA); Isiaka Mohammed & Anor v. Paul Okafor & Anor. (2015) LPELR – 25900 (CA). In consequence, issue No. 2 and 3 are both resolved against the Appellant.

All issues having been resolved against the Appellant, the appeal necessarily fails and same is dismissed hence the Ruling/Judgment delivered at the High Court of Kaduna on 11th December, 2019 vide suit No. KDH/KAD/1321/2018 is affirmed. Cost in the sum of N100.000.00 is assessed against the Appellant and for the Respondent.
Ordered accordingly.

OBIETONBARA O. DANIEL- KALIO, J.C.A.: I have read the judgment of my learned brother Saidu Tanko Husaini, JCA, and I agree with his resolution of the issues in this appeal. As I have nothing useful to add, it suffices that the appeal lacks merit and is accordingly dismissed by me. The judgment of the lower Court is affirmed.

OLUDOTUN ADEBOLA APEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother SAIDU TANKO HUSAINI JCA where the facts and issues in contention have been succinctly set out and deliberated.

I am in agreement with my learned brother’s reasoning and conclusions and also dismiss this appeal, affirming the decision of the lower Court.

Appearances: