U. T. C. Nigeria Plc V. Alhaji Abdul Wahab Lawal (2013)

LAWGLOBAL HUB Lead Judgment Report

MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Lagos Division herein referred to as court below. The plaintiff now respondent took out a writ of summons against the defendant, the Appellant herein. The writ says:-

The plaintiff’s claim in the amended writ of summons dated the 18th July 1988 is for the sum of (Four Hundred and Thirty Seven Thousand, Eight Hundred and Thirty Two Naira, Seven kobo) N437, 832.07k being the outstanding defaults of instalments due from the defendant to the plaintiffs under ten separate agreements whereby the plaintiffs let on hire with option to purchase the said subject – matter at a total purchase price of N716, 175.39. In a nutshell, the defendant willfully and persistently failed, refused and/or neglected to liquidate the sum due and owing despite repeated demands by the plaintiffs. The plaintiffs then claim the outstanding balance of N437, 832.07 together with interest at the rate of 15% from 31st July, 1993 being the last date of default until judgment and thereafter at the rate of 6% until the outstanding debt and costs are fully paid. The plaintiffs further seek an order for leave of this (Court of Appeal) court to sell the seized vehicles.

Pleadings were filed and exchanged and the case set down for trial. Further amended writ of summons and statement of claim were filed. While the amended statement of defence and counter-claim dated and filed on 27/9/90 were intact.

The plaintiffs called two witnesses who testified in proof while the defendant testified on his own behalf and called no witness. The 2nd plaintiff’s witness one Ahmed Tijjani and one Mr. Ekisola appeared abruptly and asked for adjournment. Both failed to appear in court any more. The learned counsel for the Defendant also appeared in court.

On 5/2/92 one Mr. Awuja, A representative of the plaintiffs was in court but could not explain why Mr. Ekisola, was not in court. Again Ahmed Tijjani was not in court to continue testifying for the plaintiffs. The learned Judge at this stage closed the case for the plaintiffs.

The Defendant, Abdulwahab testified with the hope of proving his counter-claim.

The trial court non – suited the plaintiffs. He stated thus:-

“I am aware of the fact that before an order for non-suit is made the court should give the parties the opportunity of being heard on the non-suit but the plaintiffs and their counsel have stopped attending court while it will be an unfair advantage to allow only the defendant to be heard on the issue when from my findings he is indebted to the plaintiffs but the amount being claimed falls short of the amount he is owing but which amount I cannot ascertain.

I accordingly enter a non-suit against the plaintiffs. With regards to the counter-claim of the defendant, I hold that the defendant has failed to establish his counter-claim and it is accordingly dismissed”. See pages 142 – 158 of the record.

The Appellant Alhaji Abdulwahab Lawal unsuccessfully appealed to the Court of Appeal Lagos Division. He filed a Notice of Appeal containing nine (9) grounds of appeal. I reproduce the grounds without their particulars thus:-

GROUND ONE

The learned trial judge erred in law in rejecting Exhibit 5 already admitted in evidence on the ground that the letter was not addressed to the defendant nor copied to him and that it is inadmissible through the defendant.

GROUND TWO