MR SUNNY NNAMDI OMOKEY v. MR ABIA ANTIGHA (2014)

MR SUNNY NNAMDI OMOKEY v. MR ABIA ANTIGHA

(2014)LCN/7161(CA)

In The Court of Appeal of Nigeria

On Friday, the 2nd day of May, 2014

CA/K/70/2012

RATIO

PURPOSE OF A SUMMARY JUDGMENT

The whole purpose of a 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. 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 patties by heading 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. Speaking on the essence of the Undefended List procedure, this court in its judgment in Samabey International Communications Ltd Vs Celtel Nigeria Ltd (Trading as Zain) (2013) LPELR – 20758 (CA) stated thus:
“It is pertinent to state that the provisions on undefended list in the High Court of Kano State (Civil Procedure) Rules are adjunct to the course of justice. They are rules of court touching on the administration of justice and the procedure is simply designed to ensure speedier attainment of justice with ease, certainty and dispatch, when it is abundantly clear that the defendant has absolutely no defence to the plaintiff’s case. The undefended list procedure is a specie of summary judgment evolved by the rules of court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiffs claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled – Imoniyame Holdings Ltd Vs Soneb Enterprises Ltd (2010) 4 NWLR (Pt 1185) 551, G. M. O. Nworah & Sons Co Ltd vs Afam Akputa Esq. (2010) 9 NWLR (Pt 1200) 443, Babale vs Eze (2011) 11 NWLR (Pt.1257) 48, David vs Jolayemi (2011) 11 NWLR (Pt 1258) 320.
It is not, however, the aim of the undefended list procedure to shut out a defendant who wants to contest a suit brought under the undefended list merely in order to obtain a speedy trial at the expense of justice – Macaulay Vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt 144) 283, Addax Petroleum Development (Nig) Ltd vs Duke (2010) 8 NWLR (Pt 1196) 278. Thus, Order 23 Rule 3 (1) of the High Court of Kano State (Civil Procedure) Rules gives a defendant willing to defend a suit placed under the undefended list a leeway and it obligates such a defendant to file a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, and it states that once a defendant does this, the court will grant him leave to defend.”

The Appellant filed a notice of intention to defend the matter and this was supported by an affidavit of facts with exhibits attached. The Lower Court heard the matter under the Undefended List procedure and it entered judgment in favour of the Respondent. The issue in this appeal is whether or not the Appellant deposed facts on the notice of intention to defend raising a defence of the merits to have warranted the Lower Court transferring the matter to the general cause list for trial.

The law is that for an affidavit to constitute a defence on the merit, it must condescend upon particulars and should as far as possible deal specifically with the plaintiff’s claim and affidavit, and state clearly and concisely what the defence is and what facts and documents are relied on to support it. The affidavit in support of the notice of intention to defend must of necessity disclose facts which wilt at least throw some doubt on the case of the plaintiff. A mere general denial of the plaintiff’s claim and affidavit is devoid of any evidential value and as such would not have disclosed any defence which will at least throw some doubt on the plaintiffs claim – Ataguba & Co vs Gura (Nig) Ltd (2005) 8 NWLR (Pt.927) 429, Tahir vs Kapital Insurance Ltd (2006) 13 NWLR (Pt.997) 452, David Vs Jolayemi (2012) 11 NWLR (Pt.1258) 320.

A trial Court must, however, never lose sight of the fact that it is not its duty at that point to determine whether the defence has been proved. It should simply look at the fact deposed to and determine if they prima facie afford a defence, not necessarily a complete defence, but one which shows a triable issue. The issue is not whether the defence will succeed or which of the parties will eventually succeed. Once the defendant deposes to facts which are on the face of it reasonable, not a fanciful or make believe defence, and one which raises some doubts regarding the claim of the plaintiff, he should be allowed in to defend. In other words, the success of the defence raised at the end of the case is not the criteria or yardstick for measuring whether it amounts to a triable issue or not – Tahir Vs Kapital Insurance Ltd supra, G. M. O. Nworah & Sons Co Ltd Vs Afam Akguta Esq (2010) 9 NWLR (Pt.1200) 443, Babington-Ashaye Vs E.M.A. General Enterprises Ltd (2011) 10 NWLR (Pt.1256) 479, David Vs Jolayemi supra

Therefore, where a defendant has deposed to enough facts which entitle him to interrogate the plaintiff and indeed shows that he has a fair case for defence; reasonable grounds for setting up a defence of even a fair probability that he has a bona fide defence, he ought to be given the opportunity or leave to join issues with the plaintiff by the court transferring the case to General cause List for hearing on the merits. On the other hand, a defendant who has no real defence to the action should not be allowed to disturb and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed not at offering any real defence to the action but at gaining time within which to continue to postpone meeting his obligation and indebtedness – Kenfrank (Nig) Ltd Vs Union Bank of Nigeria Plc (2002) 15 NWLR (Pt.789) 46, Sanyaolu vs Adekunle (2006) 7 NWLR (Pt.980) 551. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

CONSIDERATION TO DETERMINING WHETHER A DEFENDANT HAS A DEFENCE ON THE MERIT TO AN ACTION BROUGHT AGAINST HIM UNDER THE UNDEFENDED LIST

It is pertinent to note that in determining whether or not a Defendant has a defence on the merit to an action brought against him under the undefended list, it is not necessary for the Lower Court to consider whether the defence has been proved at that stage. What is required of the Court is to look at the facts deposed to by the Defendant, and see if they can prima facie afford a defence to the action. A complete defence needs not be shown at that stage. It is sufficient if the defence set up shows that there are triable issues or question or that for some reasons, there ought to be trial. Therefore, the issue whether the defence is proved or not can only arise where the trial judge has given the Defendant the leave to defend. See the cases of;
Yahaya Vs Waje Community Bank Ltd (2001) FWLR (Pt.46) page 804 at 814,
F.M.G Vs Sani 1990 4 NWLR (Pt 147) at 688.
Okamba vs Sule (1990) 7 NWLR (Pt.160) at 1. PER ABDU ABOKI, J.C.A.

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

MR. SUNNY NNAMDI OMOKEY Appellant(s)

AND

MR. ABIA ANTIGHA Respondent(s)

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Summary Judgment of the Kano State High Court delivered on the 31st March, 2011 by Nura S. Umar J.

The Respondent was the Plaintiff at the Lower Court while the Appellant was the Defendant.

The facts of the case leading to this appeal are as follows:
Respondent commenced action against the Appellant by writ of summons dated 17/12/2010 brought under Order 23 Rules 1 (undefended list) of the Kano State High Court (Civil procedure) Rules 1988, wherein the Respondent claims from the Appellant as follows;
1. “The sum of N300,000.00 (Three Hundred Thousand naira) only being the outstanding indebtedness of the Defendant to the Plaintiff with regard to the principal sum of N2,000,000.00 (Two million naira) as per joint business agreement between the Plaintiff and the Defendant dated 10th November 2008.
2. The sum of N2,700,000.00 (Two Million Seven Hundred Thousand Naira) only being the being the outstanding indebtedness of the Defendant to the Plaintiff with regard to the accrued guaranteed profit as per the joint business agreement between the Plaintiff and the Defendant dated 10th November 2008.
3. The Plaintiff claim interest on the sum of N3,000,000.00 (Three Million naira) only being the outstanding indebtedness of the Defendant to the Plaintiff with regard to the joint business agreement at 10% per annum Court rate from the date of judgment until final liquidation of the judgment debt by the Defendant
4. The Plaintiff also claims the cost of this action which the Defendant is making the Plaintiff to incur as expenses on account of the suit”.

The writ placed and marked undefended list was supported by an affidavit of 4 paragraphs and 8 exhibits marked S.A1 to S.A 8. Having been served with the writ the Appellant as Defendant filed his notice of intention to defend supported by a 26 paragraph affidavit attached to which were 7 annexure.

At the hearing of the matter, counsel for the Plaintiff asked for judgment while the Defendants counsel urged the Court to transfer the suit to the general cause list. The trial judge on 31/03/2011 ruled against the Defendant. He Stated in his ruling inter alia that:-
“….to my mind this as cannot and should not be transferred to the general cause list as to do so would defeat the import of order 23 of the Kano High Court (Civil procedure) Rules 1988. Having said that I hereby enter judgment in favour of the Plaintiff against the Defendant in the sum of N3,000,000.00 per the provision of order 23 rule 4 of the Kano State High Court (Civil Procedure) Rules 1988.
The Defendant shall pay 10% Court rate interest per annum on the judgment sum from 31/03/2011 until the whole judgment sum is liquidated by the Defendant.”

Dissatisfied with the said Judgment of the Lower Court, the Appellant filed a notice of appeal dated 1lth April, 2011 containing 3 (three) grounds. Parties in accordance with the rules of this Court filed their respective briefs of argument. The Appellant also filed a reply brief dated 23rd April, 2013.

The Appellant distilled two issues for determination from his three Grounds of appeal as follows;
1. Whether the Appellant has made out a defence on the merit as shown by affidavit in support of the notice of intention to defend (Distilled from Ground one and two of the Notice of Appeal).
2. Whether the learned trial Judge made any evaluation for assessment or proper evaluation or proper assessment of the affidavit evidence placed before him by the parties. (Distilled from Grounds two, three, four and five of the Notice of Appeal).

The Respondent in his brief also distilled two issues for the determination of this appeal as follows;
1. Whether the affidavit in support of the notice of intention to defend disclosed a defence on the merit warranting the Plaintiffs suit to be transferred to the general cause list.
(Ground 1)
2. Whether this honourable Court can evaluate or re-evaluate the instance case and deliver a judgment there upon. (Ground 2, 3, 4 and 5).

It is observed from paragraph 3 of the Notice of Appeal dated 11th April, 2011 that the Appellant filed only three grounds of appeal. See pages 155 to 157 of the printed record. But in their respective briefs of arguments both the Appellant and the Respondent distilled their second issue for determination from grounds 2, 3,4 and 5 of the said notice of appeal.

It is trite law that issues for determination must arises from the grounds of appeal filed.

The Appellant shall not without leave of the Court be heard in support of any ground not mentioned in the notice of appeal. Issue two as couched by both the Appellant and the Respondent in their respective briefs of argument are distilled from grounds not filed and outside the notice of appeal, and are therefore incompetent’ the arguments of the parties therefore goes to no issue.

Both the Appellants and the Respondent’s issue No.1 are the same except for the way they have been respectively couched. Issue No. 1 as couched by the Appellant has captured the essence of the dispute between the parties. Same is adopted for the determination of this appeal.

ISSUE NO.1
Whether the affidavit in support of the Notice of Intention to defend disclosed a defence on the merit warranting the Plaintiffs Suit to be transferred to the General Cause list. (Ground 1)

The learned Appellant’s counsel submitted that before a case placed under the undefended list procedure is transferred to the general cause list, the affidavit in support of the notice of intention to defend must discloses a defence on the merit.

On what amount to a defence on the merit, learned counsel referred the Court to the case of Imoniyame Holding Ltd vs Soneb Ent. Ltd (2010) All FWLR (Pt.517) page 627 at 639.

He maintained that the Appellant has established a defence on the merit to enable the Lower Court to transfer the suit from undefended list to the general cause list for hearing on the merit. He referred to the Appellant’s averments in paragraphs 14, 15, 16, 17, 18, 19, 20 and 21 of the said affidavit in support.

Learned counsel contended that all the averments reproduced above are uncontested and/or uncontroverted. He refer the Court to the case of Oti Carpets Vs Jaykay Carpet (2010) All FWLR (Pt.538) page 949 at Pages 958-959.

Learned counsel submitted that the Respondent claims the sum of N3,900,000.00 (Three Million Naira), while the Appellant maintained that by the new agreement entered by the Appellant and the Respondent (Exhibit E) it was Stated that the Respondent has agreed to accept the sum of N1,250,000.00 (One Million Two Hundred and Fifty thousand Naira) only as full and final payment after deducing the sum of N750,000.00 (Seven Hundred and Fifty thousand naira) the previous payments earlier on effected by the Appellant to the Respondent. He referred the Court to page 106 of the printed record for detailed version of the said Exhibit E, which was made to supersede all previous agreements entered by the parties.

Learned counsel insisted that the Appellant has disclosed a defence on the merit to warrant the Court granting him leave to defend the action. He referred the Court to the case of Okoli Vs Morecab Finance (Nig) Ltd 2007 All FWLR (Pt.369) pg.1164 at 1185. He argued that exhibit E duly executed by the parties Stated the outstanding sum that the Appellant is to pay the Respondent i.e N1,250,000.00. (One million two hundred and fifty thousand naira only), the same amount the Appellant through exhibits F1 and F2 (Payment slips) in which payments of the total sum of N950,000.00 (nine hundred and fifty thousand naira only) in 3 different instalments were effected. He referred the Court to page 107-108 of the printed record and paragraph 20 of the affidavit in support of notice of intention to defend.

The learned Appellant counsel submitted that the Appellant has established a defence on the merit to warrant the transfer of suit No.K/613/2010 from undefended list to the general cause list. He urged the Court to resolve this issue in favour of the Appellant.

The Respondent counsel in his brief of argument submitted that the Appellant’s affidavit in support of his notice of intention to defend did not disclose a defence on the merit and the case of Imoniyame Holding Ltd (supra) cited by the Appellant is very clear on the point that a Defendant disclosed a defence on the merit where the facts Stated in the affidavit of the Defendant are such that will require the Plaintiff to offer explanation or challenge the claim of the Plaintiff.

He referred the Court to the claim of the Respondent as set out in the affidavit in support of the writ of summons at pages 9-10 of the printed record.

Learned counsel submitted that the Appellant did not deny that he entered into contract dated 10th November, 2008 with the Respondent and that the he was indebted to the Respondent to the tune of N4,700,000.00. Furthermore, he did not deny that he entered into settlement agreement dated 1st March, 2010 with the Respondent and he defaulted the said settlement agreement. His only defence was that the settlement agreement did not state any penalty for default therefore the Respondent cannot fall back on the original contract agreement dated 10th November, 2008. He (Respondent) is estopped from refusing to enforce the settlement agreement having accepted payments under the settlement agreement.

Learned counsel contended that the affidavit of the Appellant did not require the Respondent to offer any further explanation regarding any aspect of the case neither did the said affidavit raise any serious question as to the claim of the Respondent. He submitted further that the said affidavit did not raise any issue that could not be resolved by the documents attached to the affidavits of both parties. He referred the Court to the cases of;
Okoli Vs Morecab Finance Nigeria Limited (2007) All FWLR (Pt.369) S.C 1164 at 1181.
Agro-Millers Ltd Vs CMB Ltd (1997) 10 NWLR (Pt.525) 467 at 477-478.

He submitted that contrary to the argument of the Appellant the Respondent cannot be estopped from refusing to enforce the joint business agreement dated 10th November, 2008 the Appellant having defaulted the settlement agreement dated 1st March, 2010.

Learned counsel contended that where parties set time for the fulfillment of a contract, time becomes of the essence in the performance of the said contract and also where parties to a contract mutually set a time for payment of a debt, failure to pay at the agreed time has the effect of putting an end to the contract. He refer the Court to Chitty on Contract, Volume 1, page 1407 chapter 21 paragraph 013 and the case of Kaydee Ventures Ltd Vs The Honourable Minister of Federal Capital Territory & 2 Ors. (2010) 7 NWLR (Pt.1192) SC 171.

On whether the parties made time of essence in the settlement agreement dated 1st march, 2010 learned Respondent counsel submitted that the answer is contained in the words of the settlement agreement. He referred the Court to Page 20 of the printed record of appeal and Words and Phrase Legally Defined Fourth Edition, Volume 2 at page 371 and submitted that the Appellant and Respondent made time of the essence in the settlement agreement dated 1st March, 2010 and failure of the Appellant to pay the agreement on or before May, 2010 had the effect of putting an end to the settlement agreement.

Learned counsel insisted that the Respondent cannot be estopped from refusing to enforce the settlement agreement dated 1st March, 2010 because the said agreement is an accord for which no satisfaction was made. He referred the Court to Chitty on Contract Volume 1st Chapter 22 paragraphs 012-016 (PAGES 1457-1459) and the cases of;
N.E.R.D.C Vs Gonze (Nig) Ltd 2000 9 NWLR P.673 CA 532 at 551.
Owena Bank Nigeria Plc Vs Punjab National Bank (2000) 5 NWLR (Pt.658) CA.

Learned counsel maintained that the wording of the settlement agreement showed that it was the actual payment of the said sum of N1,250,000.00 by the Appellant to the Respondent on or before May, 2010 that could purchase a release from the original contract dated 10th November, 2008.

Learned counsel referred to section 169 of the Evidence Act 2011 and argued that the key words in interpreting the said section are Intentionally caused or Permitted. He submitted that the Respondent did not act wilfully or intentionally to cause or permit the Appellant to believe that he was willing to collect any money from him after he defaulted the settlement agreement. The Appellant on his own made two payments into the Respondent’s account. The Appellant’s affidavit in support of the notice of intention to defend did not State anywhere he informed the Respondent before paying monies into the Respondent’s account. Learned counsel therefore submits that the Appellant cannot impute on the Respondent by stating that the Respondent acknowledge the receipt of the monies paid into his account by message.

Learned counsel contended that the case of Chukuma Vs Ifeloye 2009 All FWLR (Part 460) S.C 629 cited by the Appellants support the Respondents case that doctrine of estoppel does not apply in the instance case to bar the Respondent from reviving the original contract dated 10th November, 2008.

Learned counsel referred to Black’s law Dictionary 7th Edition page 571 on the essential elements of the doctrine of estoppel and submitted that the Appellant has not shown that the essential elements for the application of the doctrine of estoppel are satisfied in the instance case to bar the Respondent from refusing to enforce the settlement agreement dated 1st march, 2010.

He contended that up till the time the Respondent took out a writ of summons, the Appellant had not paid in full the debt he owes the Respondent and the Appellant has not suffered any injury at all, it is the Respondent who has suffered injury.

Learned counsel to the Respondent urged the Court to resolve issue one in favour of the Respondent, dismiss the appeal and affirm the judgment of the Lower Court.

In further argument in his reply brief on whether time was made of essence in the agreement dated 1st March 2010 and effecting payment after May 2010 rendering the said agreement unenforceable, and that recourse has to be made to the original agreement dated 10th November, 2008. Learned Appellant’s counsel submitted that reverting back to the original agreement because payment schedule had not been adhered to by the Appellant amounted to introducing what is not contained in the new agreement dated 1st March 2010. He referred to cases of;
Babatunde Vs Bank of the North Ltd (supra)
B.P.E Vs Assurance Bank Plc (2010) All FWLR (pt.545) at 261;
Kabiru Musa Rangaza Vs Micro Plastic Co. Ltd Unreported Appeal No.CA/K/138/2011 delivered on 6th March 2012.

Learned counsel for the Appellant submitted that all the essential ingredients needed to establish estoppel by conduct have been established by the Appellant in this appeal.

The position of the law under Order 23 of the Kano State High Court (Civil Procedure) Rules 1988, is that whenever an application is made to the Court for the issuance of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating in the deponent’s belief, there is no defence thereto, if the Court is satisfied, the suit shall be entered for hearing in the undefended list.

It was averred in the Plaintiff’s affidavit in support of the writ that:-
“b. That the terms of the contract was that the Plaintiff will advance to the Defendant the sum of N2,000,000.00 only to finance the business while the Defendant was to manage the business solely and to pay the Defendant 15% of the sum of N2,000,000.00 monthly as the profit due to the Plaintiff.
c. That furthermore by the terms of the contract, the Defendant guaranteed the return of the capital of N2,000,000.00 and full payment of the profit due to the Plaintiff notwithstanding any loss suffered in the running of the business.
d. That on IF November, 2008, the Plaintiff in keeping with the terms of the contract paid to the Defendant the sum of N2,000,000.00 thereby discharging fully his obligation to the Defendant as per the said joint business agreement.
e. That the contract was for a probation period of 6 months and was to be determined by a month’s notice in writing, which notice was issued the Defendant by a letter dated 21st August 2009 written by Meschach Ikpe & Co. consequently the contract was alive for a period of 10 months from 11th November 2008 – 10th September 2009. A copy of the said letter is hereby attached and marked as exhibit S.A2.
f. That at the determination of the contract, the Plaintiff was entitled to the guaranteed total sum of N5,000,000.00; that is N2,000,000.00 being the capital made available to the Defendant by the Plaintiff and the sum of N3,000,000.00 being the Plaintiffs share of profit from 10th November 2008 – If, September 2009.
g. That out of the total sum of N5,000,000.00 due to the Plaintiff on account of the joint business agreement, the Defendant had paid only the sum of N304000.00 leaving a balance of N4,700,000.00 at the termination of the contract.
h. That the notice of termination referred to in paragraph e above also made a demand on the Defendant to pay the outstanding sum of N4,700,000.00.
i. That as consequence of the facts afore-mentioned in paragraph e and h, the Defendant wrote a letter dated 29th August 2009 but signed on 28th August 2009 (sic) to the Plaintiff wherein it acknowledge and admitted its indebtedness to Plaintiff as per the joint business agreement and promise to pay without given cause for any misunderstanding. Copy of the said letter is hereby attached as S.A3”.

The rules also provide that where a party served with the writ and affidavit intends to defend the suit under the undefended list, he must deliver to the registrar not less than five days before he date fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit; the Court may give him leave to defend the suit.

In the instant case the Defendant filed a notice of intention to defend. In the affidavit in support of the notice of intention to defend, it was deposed that:-
“1. I am the Defendant in this case and by virtue of that I am very conversant with the facts of this case.
2. The facts contained in the writ of summons and he averments contained in the affidavit in support of same are not correct and do not represent the truth of the matter.
3. ——
4. On the 10th November, 2008 I entered into joint business agreement with the Plaintiff, the Plaintiff agreed to give me N2,000,000.00 (Two million naira) and to receive 15% of same as interest on the capital monthly not as profit as claimed by the Defendant.
5. The Plaintiff indeed gave me the said N2,000,000.00 and executed the mid agreement prepared by our solicitor Meshach Ikpe & Co.
6. ——–
7. ——–
8. Sometimes in March, 2009, I had a verbal discussion with the Plaintiff and I explained to him the problem I had encountered in respect of this business to the effect that my supplier were having problems with their factories as a result delivery was delayed longer than envisaged.
9. In consequence of paragraph 8 above the Plaintiff reported me to the Bishop Bolu Martins my senior pastor and it was resolved that we should terminate the joint business and I should pay the Plaintiff his N2,000,000.00 which he advanced in the joint business by mutual consent. We agreed that since he is no longer interested in the business I should pay him the mid N2,000,000.00 by instalment payment of N300,000 monthly which I began to pay in. The teller evidencing the payment is herewith attached as Exhibit B.
10. ——–
11. On 21st August, 2009 he wrote me through his lawyer Meshach Ikre & Co. informing me of the termination of the transaction and I replied the said letter. My reply is herewith attached and marked as Exhibit C.
12. ———
13. ——–
14. After I was released from detention, I paid him N750,000. The teller evidencing the mid payment is herewith attached and marked as Exhibit D1, D2, D3 and D4.
Considering the fact that in March I paid N300,000 as stated in paragraph 9 of this affidavit and the payment mentioned in paragraph 14 above. I have paid him the total sum of N1,050,000.
16. On the In March 2010 Barister Ambule brokered a peace meeting between us where the Plaintiff insisted that the initial N300,000 I paid in March 2009 Stated in paragraph 9 of this affidavit be deemed as interest on his capital of N2,000,000.00.
17. Barrister Amnule encouraged me to accept the Plaintiffs position as stated in paragraph 16 above of this affidavit as a better option to what our previous agreement entailed which I agreed.
18. On that same day we executed a new agreement dated 1st march 2010, the terms of the agreement expressly stated that the new agreement supersedes all earlier agreement entered into between myself and the Plaintiff The new agreement is herewith attached and marked as exhibit E.
19. Also in the terms of the new agreement stated in paragraph 18 above unequivocally Stated that my previous payment to the Plaintiff was N750,000 as against N1,050,000 which is Stated in paragraph 15 of this affidavit because my initial payment of N300,000 stated in paragraph 9 was taken as interest on the capital of the said N2,000,000,00 (two million naira) as indicated in paragraph 16 and 17 of this affidavit leaving my actual and accurate indebtedness to the Plaintiff as N1,250,000.00 as at 1st March 2010.
20. After the new agreement of 1st March 2010 which stated without ambiguity that my indebtedness to the Plaintiff is N1,250,000.00 I have paid the Plaintiff the total sum of N950,000 leaving an outstanding balance of N300,000 which I am ready and willing to pay. The tellers evidencing the aid payment of N300,000, N300,000 and 350,000 on 21/9/10, 26/11/10 and 7/6/10 respectively are herewith attached and marked as exhibit F1 and F2 respectively.
21. When I made the payment explained in paragraph 20 above the Plaintiff received the money and acknowledge same with a message expressing his gratitude. He indicated his willingness to collect the balance in the aid message. He neither protested nor indicated that the new agreement has lapsed and he did not deny the fact that my indebtedness to him is N300,000.00”.

The affidavit in support of the notice of intention to defend must set out clearly grounds of the defence. This is not discharged by merely stating that the Defendant has a good defence to the action without more. The details and particulars of the defence must be set out.

The trial Court is obliged to grant leave to defend the action on the undefended list where the Defendant raises substantial question of fact which ought to be tried; he should also be granted leave where the allege facts are of such a nature as to entail the Defendant interrogate the plaintiff or to cross examine his witness on the affidavit supporting the action on the undefended list.
I have carefully perused the affidavits filed by the parties, there are so much irreconcilable facts in their affidavits and the only way forward is to call oral evidence, also the defendant’s affidavit in support of the notice of intention to defend has shown that the amount now claimed by the Respondent is wrong and the amount previously admitted by him (the defendant) is lower than the one claimed by the Respondent. It is my considered opinion that the Appellant has established that there are triable issues. These issues are sufficient ground for the trial judge to transfer the suit to the general cause list.
See the cases of;
U.N.N vs Orazulike Trading Co. Ltd (1989) 5 NWLR (Pt.119) at 19;
Yahaya Vs Waje Community Bank Ltd (Supra) at 814.
The defendant’s defence must not be a cast-iron defence or one beyond reasonable doubt before the suit will be transferred to the general cause list. See; Ebong Vs Ikpe (2002) FWLR (Pt.135) at 719. In the circumstances, I resolved this issue in favour of the Appellant. He has in his affidavit in support of notice of intention to defend, disclosed a defence on the merit within the meaning of Order 23 (undefended list) of the Kano State High Court (Civil procedure) Rules) 1988. The trial Court should have transferred the matter to the General Cause list.

This appeal succeeds. The Judgment of the Kano State High Court delivered in suit No.K/631/2010 on 31/03/2011 by Nura S. Umar J. is hereby set aside. The matter is remitted back to the Chief Judge of the Kano State High Court to be re-assigned to another judge of the Court for the matter to be heard on the merit. I make no order as to costs.

THERESA NGOLI KA ORJI-ABADUA, J.C.A.: I agree.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead Judgment delivered by learned brother, Abdu Aboki, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.

The Respondent commenced the action leading up to this appeal against the Appellant before the High Court of Kano State under the Undefended List procedure. The provisions of the High Court of Kano State Rules relating to the Undefended List provide a summarily judgment procedure. The whole purpose of a 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. 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 patties by heading 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. Speaking on the essence of the Undefended List procedure, this court in its judgment in Samabey International Communications Ltd Vs Celtel Nigeria Ltd (Trading as Zain) (2013) LPELR – 20758 (CA) stated thus:
“It is pertinent to state that the provisions on undefended list in the High Court of Kano State (Civil Procedure) Rules are adjunct to the course of justice. They are rules of court touching on the administration of justice and the procedure is simply designed to ensure speedier attainment of justice with ease, certainty and dispatch, when it is abundantly clear that the defendant has absolutely no defence to the plaintiff’s case. The undefended list procedure is a specie of summary judgment evolved by the rules of court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiffs claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled – Imoniyame Holdings Ltd Vs Soneb Enterprises Ltd (2010) 4 NWLR (Pt 1185) 551, G. M. O. Nworah & Sons Co Ltd vs Afam Akputa Esq. (2010) 9 NWLR (Pt 1200) 443, Babale vs Eze (2011) 11 NWLR (Pt.1257) 48, David vs Jolayemi (2011) 11 NWLR (Pt 1258) 320.
It is not, however, the aim of the undefended list procedure to shut out a defendant who wants to contest a suit brought under the undefended list merely in order to obtain a speedy trial at the expense of justice – Macaulay Vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt 144) 283, Addax Petroleum Development (Nig) Ltd vs Duke (2010) 8 NWLR (Pt 1196) 278. Thus, Order 23 Rule 3 (1) of the High Court of Kano State (Civil Procedure) Rules gives a defendant willing to defend a suit placed under the undefended list a leeway and it obligates such a defendant to file a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, and it states that once a defendant does this, the court will grant him leave to defend.”

The case of the Respondent was predicated on a joint business agreement entered into by the parties and on strength of which he advanced a sum of N2 Million to the Appellant and in return for which he was entitled to some guaranteed return of profit and it was its case that the Appellant had failed to pay up the guaranteed profit and he claimed a total sum of N6 Million. The case of the Appellant on the notice of intention to defend was that he indeed collected the sum of N2 Million from the Respondent and for which he undertook to pay guaranteed profit but that following problems with the business, issues arose between him and the Respondent which led to his detention by the Police and that peace was brokered between them whereby a fresh agreement was entered wherein it was agreed that he should pay the Respondent a total sum of N2.3 Million in discharge of his obligations. It was his case that he had repaid total sum of N2 Million in installments leaving only a balance of N300,000.00. The Appellant exhibited the new agreement and the tellers by which he made the payments. The new agreement stated that it superseded all the previous agreements. These facts were not contested by the Respondent.

By the deposition in the affidavit in support of the notice of intention to defend the Appellant raised the defence of accord and satisfaction. This defence is recognized as a valid and complete defence. Where party entitled to a certain amount of debt compromises and agrees to collect a lesser sum in full and final satisfaction of the entire debt and the other party acting on the strength of the new agreement pays of commences payment of the lesser sum, the first party will not be allowed to subsequently maintain an action for the sum of the original debt – Savannah Sugar Company Ltd vs Wabbey Farms Ltd (2013) LPELR-22129 (CA). The facts disclosed by the Appellant in the notice of intention of intention to defend were thus not frivolous and if established constituted a recognizable defence. The facts were deserving of further enquiry and warranted this matter being transferred to the general cause list and sent forth for trial. The Lower Court was thus in error when it proceeded to hear the matter and enter judgment under the Undefended List Procedure.

It is for these reasons, and the fuller reasons contained in the lead judgment, that I too find merit in this appeal. I hereby set aside the judgment of the High court of Kano state in Suit No.K/631/2010 delivered by Honorable Justice Nura S. Usman on the 31st of March, 2011. I agree that the matter be remitted to the Chief Judge of Kano State for re-assignment to another Judge for the hearing of the matter on the merit. I too make no order as to costs.

Appearances

I. G. Waru with K. A. Hashim and P. A. JosephFor Appellant

AND

G. O. UzuFor Respondent