ABDULLAHI & ANOR v. LEAD AUTOMOBILE CO. LTD (2020)

ABDULLAHI & ANOR v. LEAD AUTOMOBILE CO. LTD

(2020)LCN/14921(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/KN/565/2017

RATIO

APPEAL: PURPOSE OF AN APPEAL

An appeal is filed for the purpose of reviewing the decision of a lower Court as to whether it arrived at the correct decision or not. It is the Notice of Appeal that activates the jurisdiction of the appellate Court to determine the appeal. The grounds of appeal filed, give the indication that the Court, whether trial or appellate had in its decision, committed an error of law, facts or of mixed law and facts, warranting a reversal. The grounds of appeal set the tone and the foundation upon which the issues to be resolved would be distilled. They must therefore be against the ratio decidendi of the decision, not the obiter dictum. See NWANKWO VS. E.D.C.S. U.A (2007) 5 NWLR (PT.1027) 377 AT 402 AND ILOABACHIE VS. ILOABACHIE (2000)5 NWLR (PT.656) 178. PER YAHAYA, J.C.A.
PRELIMINARY OBJECTION: PURPOSE OF PRELIMINARY OBJECTION

When an appeal is filed, a Respondent sometimes files a Notice of Preliminary Objection. It is raised for the purpose of truncating in limine, the appeal or an application before the Court, so that time and energy would not be dissipated on an incompetent or worthless matter before the Court – EFET VS. INEC (2011) 7 NWLR (PT.1247) 423. PER YAHAYA, J.C.A.

APPEAL: WHAT CONSTITUTES A GROUND OF APPEAL

The grounds of appeal must be clear and not vague, so that their import would be certain. Order 7 Rule 2(2) of the Court of Appeal Rules 2016 provides –
“(2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”
In the case of ELF PETROLEUM VS. DANIEL UMAH (2018) SCNJ (PT.1) 1 AT 30, the Supreme Court considered Order 8 Rule 2(2) of the Supreme Court Rules which are in pari materia with Order 7 Rule 2(2) of the Court of Appeal Rules 2016 and held that
“…the use of the word ‘shall’ in the Rules of Court, makes it mandatory and not merely directory that the particulars of error or misdirection in law, in the ground of appeal must be stated.”
In that case, the offending ground 1 of the additional grounds of appeal was struck out by the Supreme Court, as well as issue number three distilled from it and the arguments proffered on it, as the ground was not supported by any particulars. In OPARISON VS. OPARISON (SUPRA) the Court held that
“A ground of appeal, where it alleges misdirection or error in law should clearly state the particulars and nature of the misdirection or error. Any ground that is devoid of particulars, is vague and same ought to be struck out for want of specifity…
A ground of appeal alleging misdirection or error in law without showing in what respect, is incompetent and as such worthless.” PER YAHAYA, J.C.A.
APPEAL: WHAT IS A VAGUE GROUND OF APPEAL

What is a vague ground of appeal? A ground of appeal is vague if it is allusive, ambiguous, broad, debatable, disputable, evasive and in exact. It is vague if it is wooly, equivocal, not comprehensive, blurry, nebulous, uncertain and shadowy. See LAGGA VS. SARHUNA (2008) LPELR – 1740 (SC) AT 40-41; ALHAJI NUHU VS. ALHAJI OGELE (2003) LPELR – 2077 (SC) AND NWOYE OKECHUKWU VS. INEC (2014) 9 SCNJ 47. Similarly in ODUAH VS. FRN (SUPRA), this Court held that “vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or which when what is stated is so uncertain that it is not susceptible of being understood….or it is not particularized….” PER YAHAYA, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

1. ALHAJI TANIMU ABDULLAHI 2. TASAF GENERAL MERCHANDISE LIMITED APPELANT(S)

And

LEAD AUTOMOBILE COMPANY LIMITED RESPONDENT(S)

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Kano State, delivered on 18th July, 2017 in Suit No. K/554/13, wherein, the Respondent as the plaintiff at the trial Court, was awarded Fifteen Million Naira (N15 million) plus 10% interest from the date of Judgment until the Judgment sum is liquidated against the Appellants, who were the Respondents.

The Appellants, as owners of a property No. 18B Guda Abdullahi Way, City Centre Kano, covered by a Certificate of Occupancy No. LKN/COM/97/195 offered to sell same to the Respondent in consideration of Forty-Nine Million, Nine Hundred Thousand Naira (N49,900,000.00). Being agreeable, the Respondent paid the sum of Fifteen Million Naira (N15,000,000.00) leaving a balance of Thirty-Four Million, Nine Hundred Thousand Naira (34,900,000.00). Before the Respondent could complete the payment of the outstanding balance, the Kano State Government realized that the property in question, along with others, were atop the State Sewage line and so demolished them. Following this development, the Respondent demanded a refund of the N15,

Million it had paid and the Appellants promised to do so. When they failed, the Respondent filed a Suit at the High Court Kano (the trial Court) under the Summary Judgment Procedure, by filing a Motion with a Statement of Claim. The Appellants filed a Statement of Defence, with a counter-claim and a counter affidavit. The Suit was heard and the trial Court entered Judgment in favour of the Respondent. Being dissatisfied, the Appellants filed this Appeal.

The Appellants’ brief was settled by Mr. Jamilu Ahmed Ungogo and was filed on 5th December 2017, with the following two issues distilled for resolution –
(a) Whether the trial Court was right, when it entered Judgment against the Appellants, notwithstanding the Appellants’ counter affidavit disclosing sufficient facts and materials constituting a defence on the merit.
(b) Whether the lower Court was right when it failed to accord the Appellants the right to prove their counter claim of N34.9 Million Naira.”

The Respondent’s brief was settled by Sir Steve Adehi and was filed on 23rd January, 2018. He formulated a single issue for determination viz –<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

Whether the lower Court was right when it entered Judgment against the Appellants notwithstanding the Appellants’ counter affidavit, statement of defence and counter-claim.

He also raised a Notice of Preliminary Objection, challenging the competence of the appeal on the ground:
That grounds 1 and 2 of the Appellants’ Notice of Appeal are unclear and vague with no particulars, stating clearly the alleged misdirection or error in law, contrary to Order 7 Rule 2 (2) and Order 7 Rule 3 of the Court of Appeal Rules 2016.

In arguing the Preliminary Objection, learned senior counsel referred to Order 7 Rule 3 of the Court of Appeal Rules 2016, grounds 1 and 2 of the Appellants’ Notice of Appeal, and submitted that the said grounds are vague and do not disclose any reasonable ground or particulars stating clearly the alleged misdirection or error in law appealed against. He placed reliance on NNPC VS. AMINU (2014) ALL FWLR (PT. 716) 527 AT 548 – 549; OPARISON VS. OPARISON (2013) ALL FWLR (PT.666) 523 AT 532 AND ODUAH VS. FRN (2012) ALL FWLR (PT.650), 1348 AT 1360. He urged us to strike them out and the issues distilled from them

– BOB VS. AKPAN (2010) ALL FWLR (PT. 501) 896. Since the grounds are incompetent, the Notice of Appeal is also incompetent he argued –FIRST BANK OF NIGERIA PLC VS. MAIWADA (2013) ALL FWLR (PT. 661) 1433 AT 1487. He therefore urged us to strike out the appeal.

Curiously, the Appellants failed to file any Reply to the Preliminary Objection, thus indicating that they have conceded it. Even on the day of the hearing of this appeal, learned counsel did not make any response to the Preliminary Objection even orally.

See NWANKWO VS. E.D.C.S. U.A (2007) 5 NWLR (PT.1027) 377 AT 402 AND ILOABACHIE VS. ILOABACHIE (2000)5 NWLR (PT.656) 178.
When an appeal is filed, a Respondent sometimes files a Notice of Preliminary Objection. It is raised for the purpose of truncating in limine, the appeal or an application before the Court, so that time and energy would not be dissipated on an incompetent or worthless matter before the Court – EFET VS. INEC (2011) 7 NWLR (PT.1247) 423. The grounds of appeal must be clear and not vague, so that their import would be certain. Order 7 Rule 2(2) of the Court of Appeal Rules 2016 provides –
“(2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”
In the case of ELF PETROLEUM VS. DANIEL UMAH (2018) SCNJ (PT.1) 1 AT 30, the Supreme Court considered Order 8 Rule 2(2) of the Supreme Court Rules which are in pari materia with Order 7 Rule 2(2) of the Court of Appeal Rules 2016 and held that
“…the use of the word ‘shall’ in the Rules of Court, makes it mandatory and not merely directory that

the particulars of error or misdirection in law, in the ground of appeal must be stated.”
In that case, the offending ground 1 of the additional grounds of appeal was struck out by the Supreme Court, as well as issue number three distilled from it and the arguments proffered on it, as the ground was not supported by any particulars. In OPARISON VS. OPARISON (SUPRA) the Court held that
“A ground of appeal, where it alleges misdirection or error in law should clearly state the particulars and nature of the misdirection or error. Any ground that is devoid of particulars, is vague and same ought to be struck out for want of specifity…
A ground of appeal alleging misdirection or error in law without showing in what respect, is incompetent and as such worthless.”
What is a vague ground of appeal? A ground of appeal is vague if it is allusive, ambiguous, broad, debatable, disputable, evasive and in exact. It is vague if it is wooly, equivocal, not comprehensive, blurry, nebulous, uncertain and shadowy. See LAGGA VS. SARHUNA (2008) LPELR – 1740 (SC) AT 40-41; ALHAJI NUHU VS. ALHAJI OGELE (2003) LPELR – 2077 (SC)

AND NWOYE OKECHUKWU VS. INEC (2014) 9 SCNJ 47. Similarly in ODUAH VS. FRN (SUPRA), this Court held that “vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or which when what is stated is so uncertain that it is not susceptible of being understood….or it is not particularized….”
In the instant appeal, the two grounds of appeal filed read –
“GROUND 1
The learned trial Judge erred in law, when he relied on a piece of averment in pleadings as filed by the Appellants in their counter affidavit and entered Judgment against the Appellants.
GROUND 2
The Judgment entered is unwarranted, having regards to the pleadings as filed by parties.”
It is patent, that not only are these grounds devoid of particulars, the substance of the complaint of the Appellants, is not discernible from them. The “piece of averment in the pleadings as filed by the Appellants in their counter-affidavit” has not been specified, or defined. It is wooly, blurry and not comprehensive. This Court, as well as the

Respondents, are left in the dark as to what the complaint is about, and what the piece of averment exactly is. The ground is very vague, unspecific and incapable of conveying a known complaint. Ground 2 of the appeal does not amount to an omnibus ground. This is because it is complaining about the judgment being unwarranted having regards to the pleadings! It should have been having regards to the evidence, after all, a Judgment is not based on pleadings but on the evidence led on the pleaded facts, and the law. The ground has no particulars and has no meaning whatsoever. The two grounds of appeal filed by the Appellant have woefully failed to satisfy the mandatory requirements of Order 7 Rule 2(2) of the Court of Appeal Rules 2016. They are incompetent and are hereby struck out. The issues distilled from them are therefore also incompetent and are struck out –BOB VS. AKPAN (SUPRA) AND AFOLABI FAJEBE VS. OPANUGA (2019) 1 SCNJ 342. Since there are no competent grounds of appeal and no competent issues upon which to determine the appeal, the appeal itself is also incompetent. This is because when all the grounds of appeal are incompetent, this Court will

have no competence to adjudicate on same, and that incompetent grounds of appeal, render the Notice of Appeal also incompetent – ODOFIN VS. AGU (1992) 3 NWLR (PT. 229) 350 AND SACOIL NIG. LTD. & ANOR. VS. TRANSNATIONAL CORPORATION OF NIGERIA PLC. (2020) LPELR – 49762 (CA) per Tobi JCA at page 47. The Preliminary Objection therefore has merit and I sustain it. This appeal is hereby struck out.

In case we are wrong, we shall consider the merit of the appeal.

I have already set out the two issues identified by the Appellant. Issue (b) is not stated to be distilled from any ground of appeal. I have looked at ground 2 of the appeal and clearly, issue (b) could not have been distilled from it because ground 2 of the appeal is on pleadings of the parties, whereas issue (b) is specifically on the right to prove the counter-claim of N34.9 million naira. There is no correlation between the two at all. Issue (b) not being based on any ground of appeal, goes to no issue and is struck out.

Ground 2 of the appeal has no issue distilled from it. It is deemed abandoned. It is struck out. See GOVERNOR OF IMO STATE VS. NETWORK (NIG.) LTD. (2019) 3 SCNJ 142 AND AFOLABI VS. OPANUGA (SUPRA) AT 353.

ISSUE (a)
Whether the lower Court was right when it entered Judgment against the Appellants notwithstanding the Appellants’ counter-affidavit disclosing sufficient facts and materials constituting a defence on the merit.

Learned counsel for the Appellants in referring to the cases of AGRO MILLERS LTD. VS. CONTINENTAL MERCHANT BANK (NIGERIA) PLC. (1997) 10 NWLR (PT. 525) 469; BENDEL CONSTRUCTION CO. LTD. VS. ANGLOCAN DEVELOPMENT CO. (NIG.) LTD. (1972) ALL NLR (PT. 1) 153 AT 173; ALHAJI DANFULANI VS. MRS. SHEKARI (1966) 2 NWLR (PT.433) 723 AND ALHAJI AHMED VS. TRADE BANK OF NIGERIA PLC. (1997) 10 NWLR (PT. 524) 290, submitted that where a case is filed under the Undefended List Procedure, similar to a Summary Judgment Procedure, the affidavit in support of the Notice of Intention to defend must state clearly and concisely the defence and facts which would throw some doubt on the case of the plaintiff. He then argued that the counter affidavit filed by the Appellant against the Motion for summary judgment, had disclosed sufficient foundation for a triable issue at the trial Court. Again, that the

defence to the counter-claim filed, is a clear indication that there existed a real dispute and controversy concerning the claim of N34.9 million which could only be resolved by taking oral evidence – JOHN HOLT & CO. (LIVERPOOL) LTD. VS. FAJEMIROKUN (1961) ALL NLR 492; NISHIZAWA LTD. VS. JETHWANI (1984) 1 SC 324 AND F.M.G. VS. SANI (1990) 4 NWLR (PT. 147) 688 AT 713. Counsel argued that when the trial Court ignored the Appellants’ counter-claim of N34.9 million, it breached Order 11 Rule 5 of the Kano State High Court Civil Procedure Rules 2014, leading to miscarriage of justice. He urged us to resolve the issue in favour of the Appellant.

Replying, learned counsel for the Respondents submitted that for a defendant to be granted leave to defend an action under the Summary Judgment procedure, he must disclose a real and reasonable defence -GRAND SYSTEM PETROLEUM LTD. VS. ACCESS BANK PLC. (2014) ALL FWLR (PT. 725) 293 AT 325. He then argued that the Appellants’ statement of defence and counter-affidavit, did not disclose any reasonable and specific defence to the Summary Judgment application, as they merely denied it but did not deny

that the claimed sum of N15 million was paid to them by the Respondent for a consideration for the sale of the land under a contract that had been frustrated by the action of the Kano State Government – NWAOLISAH VS. NWABUFOR (2011) ALL FWLR (PT. 591) 1438 AT 1460. That where an agreement is frustrated, the only available remedy is to determine it and money paid can be recovered – U.B.A VS. BTL INDUSTRIES LTD. (2006) 19 NWLR (PT. 1013) 61 AT 74 AND HAIDO VS. USMAN (2004) 3 NWLR (PT. 859) 65 AT 71. He then supported the judgment on the basis that the agreement was frustrated and money paid, recoverable.

On counter-claim, learned counsel submitted that Order II of Kano State High Court Civil Rules 2014 does not contemplate a counter claim as a defence for Summary Judgment, and that the filing of a counter claim does not entitle the defendant leave to defend the action – THOR LTD. VS. FIRST CITY MERCHANT BANK LTD. (2005) ALL FWLR (PT. 274) 217 AT 232. He argued further that a frustrated contract or agreement, cannot be the basis of a counter claim as it is founded on nothing. He urged us to resolve the issue in favour of the Respondent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

A Summary Judgment Procedure is akin to an action on the Undefended List and a defendant is required to file an Affidavit, disclosing a defence on the merit and a statement of defence.

The action of the Plaintiff now Respondent, was based on the fact that the contractual agreement reached between the parties had been frustrated, hence its claim for the refund of the moneys it paid to the Appellants. In such a situation, the obligation of the parties are discharged and the contract is considered terminated – WECO ENGINEERING AND CONSTRUCTION CO. LTD. VS. DUFAN (2019) LPELR – 47211 (CA) AND NWAOLISAH VS. PASCHAL (2011) 14 NWLR (PT. 1268) 600. Example of frustration of a contract can be found where (1) there are legal challenges or statutory impossibility; (2) there is an outbreak of war; (3) the subject matter is destroyed; (4) Government takes over or requisitions the subject matter of the contract or (5) there is a cancellation by unexpected events – per Abiru JCA in HAJIYA HADIZA & ANR. VS. ALHAJI MOHAMMED (2015) LPELR – 40383 (CA). A party relying on frustration of contract is required to plead same and lead evidence on the

events giving birth to the frustration – WECO ENGINEERING VS. DUFAN (SUPRA) AT PAGE 30.

In the instant appeal, the Respondent, at paragraph 7 of the statement of claim, averred that it made a part payment of Fifteen Million Naira out of the total contract sum of Forty-Nine Million, Nine Hundred Thousand Naira, to the Appellants. Before it could complete payment, the Kano State Government demolished half of the property (the subject matter of the contract between the parties), as it was on top of the State Sewage Line. The remaining portion was not suitable for the purpose of the Respondent – Paragraphs 9 and 10 of the Statement of Claim. It therefore claimed for the amount it paid to the Appellants. There is therefore pleading of events that substantially affected adversely, the purpose of the contract, though no fault of either party. The Respondent then deposed to these facts at Paragraph 9 and 10 of the Witness Statement on Oath of Ibrahim Mohammed, the Secretary of the Respondent. Also, Paragraphs (f), (g) and (h) of the Affidavit in Support of the Motion for Summary Judgment, contain facts of the event that led to the failed contract. It

is clear therefore, that the Respondent as Plaintiff, pleaded and adduced evidence of the event that frustrated the contract.

On their part, the Appellants as defendants, filed a joint statement of defence. At paragraph 8 thereof, they averred that “virtually all the buildings and plots situate at City Centre Kano” (where the property the subject matter of the contract is situate), were affected by the construction of public sewage by Kano State Government. At paragraph 9, they averred that half of the property in issue was not demolished. The property is No 18b Guda Abdullahi Way. At paragraph 10, they averred that No. 18a Guda Abdullahi Way “was completely demolished sequel to the said sewage construction…” At paragraph 11, they averred that the plot next to the plot in issue, was affected by the demolishing exercise. With these averments, it is difficult to appreciate that not half of the plot in issue was demolished. The Appellants also counter-claimed for the balance of the money remaining unpaid.

The trial Court considered all the processes filed and at page 222 of the record in its judgment, it found that the

destruction of some of the structures, and the recovery of a portion of the plot in issue by Kano State Government, constituted the event that frustrated the contract. The trial Court, upon the facts and the law, was right. There is no appeal against the finding of the trial Court and they are deemed to have admitted same. This Court and the parties are also bound by the findings of facts – ABUBAKAR VS. BEBEJI OIL LTD. & ORS. (2007) LPELR – 55 (SC); MALLAM JIMOH & ANR. VS. MALLAM AKANDE & ANOR. (2009) LPELR – 8087 (SC); AGODI VS. ANYANWU & ORS. (2014) LPELR – 23746 (CA) AND CPC VS. INEC (2011) 18 NWLR (PT. 1279) 493.

As regards the claim of N15 Million by the Respondent, the law is clear where a party pays money to another party for a consideration in a contract, which has totally and completely failed, such as due to frustration of the contract, that party is entitled to claim his money back from the other party – NWAOLISAH VS. PASCHAL NWABUFOR (2011) LPELR – 2115 (SC) per Galadima JSC at page 49; FIRST BANK VS. OZOKWERE (2006) 4 NWLR (PT. 970) 422 AND HAIDO VS. USMAN (2004) 3 NWLR (PT.859) 65. Here, the

Appellants did not deny receiving the N15 Million from the Respondent. The trial Court has also found that the contract had been frustrated. The Appellants therefore had no defence on the merit to the claim. The fact that they filed a counter claim for the unpaid balance of N34.9 Million, did not entitle them to leave to defend – THOR LTD. VS. FIRST CITY MERCHANT BANK LTD. (2005) ALL FWLR (PT. 274) 217 AT 232, since the trial Court found that they had no defence to the claim. The trial Court was right when it entered judgment for the Respondent against the Appellants in the claimed amount. The issue is resolved in favour of the Respondent and against the Appellants.

This appeal has no merit and it is dismissed. I affirm the judgment of the trial Court delivered on 18th July, 2017 in Suit No. K/554/2013. N50,000 costs to the Respondent against the Appellants.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abubakar Datti Yahaya, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and

abide the conclusions reached therein both on the preliminary objection and on the substantive. I only wish to make a few comments on the substantive appeal.

Judgment was entered by the lower Court on the Respondent’s motion for summary Judgment filed pursuant to the provisions of Order 11 of the High Court of Kano State (Civil Procedure) Rules 2014. The term summary judgment denotes a judgment usually granted by Court on a claim about which there is no genuine issue of material fact, and upon which the claimant is entitled to prevail as a matter of law. Primarily, the Court takes into consideration the pleadings, the motions, and, where necessary, additional evidence adduced by the parties to determine whether or not there is a genuine issue of material fact, rather than one of law. The primary object of summary judgment procedure is to allow speedy disposition of a controversy without the need for trial- Nnabude Vs G N Godiscoy (W/A) Ltd (2010) 15 NWLR (Pt 1216) 365, Bona V Textile Ltd vs Asaba Textile Mill Plc (2013) 2 NWLR (Pt 1338) 357.
Order 11 of the High Court of Kano State (Civil Procedure) Rules 2014 provides for summary judgment where it

is clearly shown on the papers before the Court that the defendant has no good defence to plaintiff’s clam. The whole purpose of the summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. A sham defence is unreal, fake and deceitful defence. No amount of sophistry or technical pyrotechnics can launder a sham defence into a real defence to a plaintiff’s pleaded facts and verifying evidence. In other words, the summary judgment rules are specially made to help the Court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit With utmost dispatch and prevent the frequent outcry that justice delayed is justice denied – United Bank for Africa Plc Vs Jargaba (2007) 11 NWLR (Pt 1045) 247, University of Benin vs Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441.
Order 11 Rule 1 the High Court Of Kano State (Civil Procedure) Rules

States that where a plaintiff reasonably believes that the defendant has no defence to his claim, he shall file with the originating process, the statement of claim, the exhibits, the depositions of witnesses and an application for summary judgment and the said application shall be supported by an affidavit stating the grounds and a written brief in respect thereof. Order 11 Rule 4 provides that a defendant who is served with all the processes referred to in Rule I shall not later than the time prescribed for defence file: (i) his statement of defence; (ii) deposition of witnesses; (iii) exhibits to be used in his defence; and (iv) a written brief in reply to the plaintiff’s application for summary judgment. Order 11 Rule 5 (1) stipulates that where it appears to a Judge that a defendant has a good defence and ought to be permitted to defend the claim, he may be granted leave to defence. Order 11 Rule 5 (2) states that where it appears to a Judge that the defendant has no good defence, the Judge may thereupon enter judgment for a claim.
What these provisions do is that where a plaintiff applies for judgment under the summary

judgment procedure and the case of the plaintiff is suited for the procedure, the burden is put on a defendant to satisfy a trial Court that he has a good defence, or to disclose other facts entitling him to defend. otherwise judgment would be entered for the plaintiff. The Supreme Court has stated and restated what a defendant must show to be let in to defend under the summary judgment procedure and these are that:
i. The defence of the defendant must condescend upon particulars and as far as possible deal specifically with the plaintiff’s claim and should also clearly and concisely state what the defence is;
ii. A mere denial by defendant of being indebted to the plaintiff is not enough, the defence should state why the defendant is not indebted in full or in part, and then state the true position;
iii. It is also not enough for the defendant to show case of hardship, nor a mere inability to pay;
iv. In all cases the defendant must provide sufficient particulars to show that there is a bona fide defence;
v. Only defences on the merit are allowed; the defendant cannot rely on sham defence;
vi. Where the defendant raises

legal objection, the fact and the point of law arising therefrom must be clearly and adequately stated.
See the cases Nishizawa Vs Jethwani (1984) 12 SC 234, Macaulay Vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt 144) 283 and Sanusi Brothers (Nigeria) Ltd Vs Cotia Commercio Exportacao E Importacao SA (2000) 11 NWLR (Pt 679) 566.

The Appellants both in the statement of defence and in the counter affidavit to the application for summary judgment, admitted the entire case put forward by the Respondent that the Respondent paid to them the sum of N15 Million for the purchase of a parcel and that the Respondent commenced construction thereon and that the constructions were demolished by the Kano State Government and part of the land recovered because the land was part of a portion of land earmarked for the construction of a public sewage. The N15 Million paid to the Appellants amounted to consideration paid for a contract that failed and the law is that the person who made the payment is entitled to a refund summarily – Asset Resource Management Co Ltd Vs Elizade (Nig) Ltd (2019) LPELR 47328(CA), Grant properties Ltd vs Osasanya (2019) LPELR 49526(CA). The

Appellants counterclaimed for the balance sum due from the Respondent on the purchase of the land. The lower Court made clear findings of fact that the contract had become frustrated. The Appellants did not appeal against these findings of fact and they are thus bound by it. The findings made the counterclaim of the Appellants non-existent and baseless. The Appellants had no plausible, reasonable or credible defence to the claim of the Respondent.

It is for these reasons and the fuller exposition of the law in the lead judgment that I too find no merit in this appeal and I hereby dismiss same. I affirm the decision contained in the judgment of the High Court of Kano State delivered in Suit No. K/554/2013 delivered by Honorable Justice Ibrahim Umar on the 18th July, 2017. I abide the consequential orders on costs made in the lead judgment.

AMINA AUDI WAMBAI, J.C.A.: I had a preview of the lead Judgment delivered by my learned brother, Abubakar Datti Yahaya, JCA. I agree that this appeal lacks merit and I dismiss it. I abide the order as to cost.

Appearances:

JAMILU AHAMED For Appellant(s)

SIR STEVE ADEHI SAN, with him, M. U. NAMTAR and LYNDA ONYE ABARI For Respondent(s)