Alhaji Abdu Usman Maidara V. Alhaji Shehu Halilu (2000)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, J.C.A. 

The plaintiff’s claim against the defendant is for the sum of N149,500.00, being the balance of money collected from him for the purchase and supply of fertilizer, which the defendant refused or neglected to pay, inspite of several demands and an agreement, in which the defendant gave an undertaking to refund the same by 31st December, 1999. The writ of summons was caused to be issued, under undefended list, pursuance of Order 22 rule 1 of the Kaduna State High Court (Civil Procedure) Rules, 1987.
The defendant filed notice of his intention to defend supported by affidavit disclosing defence on the merit. The suit was eventually transferred from the undefended to the general cause list.

Pleadings were consequently ordered, filed and exchanged accordingly a statement of claim and amended statement of defence. The plaintiff’s claim adumberated in paragraph 33 of his statement of claim reads inter alia as follows: “In consequence of the matters aforesaid, the plaintiff has suffered loss and damage whereof he claims against the defendant as follows:-
1. Special damages: N64,500 being the balance of plaintiff’s principal sum of N203,000.00 with the defendant.
2. General Damages: N80,000.00 for psychological trauma and general discomforts suffered by the plaintiff as a result of the fraudulent acts of the defendant.
3. 21 percent interest on the balance of the plaintiff’s money with the defendant which is N64,500.00 from the date it remained unpaid to the date judgment is delivered (if in favour of the plaintiff) and the date the defendant finally liquidates his total indebtedness to the plaintiff.
Total : N144,500.00 plus 21% interest on N64,500.00.”

The defendant filed a sixteen paragraph statement of defence containing a fourteen paragraph particulars of counter claim. It was averred in paragraph 16 of the statement of defence thus:-
“That in further reply to paragraph 29 – 33 the defendant avers as follows:-
(i) That the plaintiff pleaded with the defendant to borrow him some money and the defendant borrowed him N57,000.00 in the presence of one Ahmadu and later N65,000.00 and subsequently N5000.00 all totaling N142,000.00 which the plaintiff collected and has refused to repay same to the defendant inspite of repeated demands but the defendant did not give the said money to the plaintiff in payment of any purported debt.
(ii) …
(iii)…..
(iv) … AND the defendant hereby counter claims against the plaintiff as follows:-

SPECIAL DAMAGES:
1. N50,000 – Cost of defendant 1515 fertilizer jointly supplied to NTC with the plaintiff which the plaintiff has converted to his own use
2. N3,500 – Being defendant’s share of the N7 ,000.00 profit realised from the supply of fertilizer to NTC which the plaintiff has wrongfully converted to his own use.
3. N142,000 – Being money borrowed by the plaintiff from the defendant which the plaintiff has refused to pay inspite of repeated demands.

GENERAL DEMAGES:
4. N200,000 – Being loss of earning suffered by the defendant caused by the plaintiff’s refusal to pay the money, under heading 1,2 and 3 above totaling N105,000.00
5. N20,000 – General damages for defendant’s conversion of the plaintiff’s N195,000.00.
———–
N235.500.00   Special and General damages.”

The plaintiff testified and called three other witnesses in support of his claim. The defendant also gave evidence, in addition to two other witnesses, he called in support of his defence and counter-claim. Learned counsel for either party addressed the court viva-voce. Thereafter, learned trial Judge, in a reserved and well considered judgment, concluded as follows:-

“I have come to the irresistible conclusion that the claim of the plaintiff succeeds in part and is granted while the counter-claim of the defendant has failed and is dismissed. Judgment is hereby entered in favour of the plaintiff as against the defendant in the sum of N64,500.00 being balance of his N203,000 advanced to him in the course of this transaction. Plaintiff is also awarded N10,000 as general damages. The claim of 21% interest is refused. As for the defendant his counter-claim fails and is dismissed.”

The defendant is dissatisfied with the decision and has appealed to this court on 9 original and 1 additional grounds of appeal. The notice of appeal dated 27/6/97 appears to carry 10 original grounds the truth is that there are only 9 grounds of appeal. The false impression emanates from ground 3 being numbered as ground 4. In accordance with practice and procedure of this court, briefs of argument were settled and exchanged respectively at amended appellant’s and respondent’s brief.

Issues were formulated in each of the brief of argument. In the appellant’s brief these issues were identified as calling for determination:-

“1. Whether the Islamic Law principles of Sharikat Al Mudharaba means, a contract where respondent supplies capital for a business transaction which business is to be performed by appellant so that the 2 parties share the profit accruing thereby.
2. If the definition above is correct whether the contract between the 2 parties in this matter is governed by principle of Sharikat Al Mudharaba.
3. Whether the lower court was right in holding that the transaction between the parties ” was a clear case of simple contract offer and acceptance with the attribute of consideration and meeting of the mind otherwise known as consensus ad idem”.
4. Whether the onus of proving that the plaintiff was robbed on Lagos was static and never shifted in the circumstance of this case to prove the contrary.
5. Whether in the circumstances that the lower court held that there was no proof that the respondent had suffered any psychological trauma to the tune of N80,000.00 claimed under what principle did he awarded N40,000.00 costs.
6. Whether from both the pleadings and evidence before the trial court, the court was right in dismissing the appellant’s counter-claim.”

The respondent, who was the plaintiff in the trial court, framed the following issues:

“1. Whether the trial Judge was right in holding that Islamic law principle of Sharikat al-Mudharaba does not apply to the transaction between the respondent and the appellant and that the transaction between parties was a simple contract of offer and acceptance.
2. Whether the trial Judge was right in rejecting the appellant’s evidence on the alleged robbery in Lagos.
3. Whether the trial Judge was justified in entering judgment for the respondent on the facts of this case.
4. Having regard to the pleadings and evidence of the appellant in support of his purported counter claim whether the trial Judge was justified in dismissing same.”

I doubt the validity of the appellant’s issues 1 and 6 which are purely academic. Neither is directed at a particular ratio decidendi of the judgment of the court below. Examination of the additional ground of appeal shows its scope and limitation. The ground reads as follows:-