Before Their Lordships
IBRAHIM TANKO MUHAMMAD, Justice of the Supreme Court of Nigeria
OLUKAYODE ARIWOOLA, Justice of the Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD, Justice of the Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS, Justice of the Supreme Court of Nigeria
AMINA ADAMU AUGIE, Justice of the Supreme Court of Nigeria
Between
1.CHIDUME OKORO
2.ADA CHIDUME OKORO Appellants
And
IKECHI OKORO Respondent
…………………….A…………………….
M.D. MUHAMMAD, J.S.C. (Delivering the Leading Judgment): At the Lagos State High Court, hereinafter referred to as the trial court, the respondent as the plaintiff took out a writ against the appellants as defendants thereat claiming jointly and severally:
“(a) The sum of $184,512.02 or N25,831,682, 80 its Naira equivalent payable by the defendants to the claimant being outstanding balance of money lent to the defendants by the claimant.
IN THE ALTERNATIVE
The claimant claims against the defendants jointly and severally the said sum of $184,512,02 or N25,831,682.80 its Naira equivalent payable by the claimant being outstanding balance of money had and received by the defendants for use of the claimant for a consideration that has totally failed.
(b)Interest of on the said sum at rate of 30% per annum until payment.”
By his motion on notice dated 9th day of August 2004 the plaintiff/respondent, pursuant to order Order 11 rule 1 of the High Court of Lagos State(Civil Procedure) Rules, prayed the trial court to enter final judgment against the defendants/appellants who had no defence to his claim as contained in the writ.
In support of plaintiff/respondent’s application is a fifteen paragraph affidavit sworn to by Kizito Roberts to which exhibits A and B, photocopies of promissory notes and a photocopy of a Debt Repayment Agreement dated 31st March 2003 all executed by the parties.
The defendants/appellants filed their amended statement of defence which contains a counter-claim and a counter affidavit in opposing respondent’s application.
…………………….B…………………….
The facts in support of his motion for summary judgment at the trial court is, inter-alia, that in order to enhance the joint venture business they established,the plaintiff/respondent advanced funds to the defendants/appellants. The joint venture having failed, the two sides agreed that the funds be converted into a loan. Exhibits A and B were thus executed by the defendants/appellants who,by a payment agreement, acknowledged their indebtedness to the plaintiff/respondent in the sum $254,512.02 and undertook to repay the amount on or before 31-07-03. It is respondent’s case also that the defendants/appellants who had made a part payment of $70,000 however refused to pay the balance since then. The respondent avers that appellants who cannot resile from exhibits A and B have no defence to his claim.
