Alh. Abdullahi Haido & Anor V. Alh. Sikiru Usman (2003)

LawGlobal-Hub Lead Judgment Report

JOSEPH JEREMIAH UMOREN, J.C.A. 

By a writ of summons, dated 9th June, 1999, the plaintiff/ respondent claimed from the defendant/appellant, on the undefended list as follows:

“1. The plaintiff claims against the defendants jointly and severally the sum of N2.8m (Two million, eight hundred thousand Naira) only, being the balance outstanding debt against the defendants, interest accruing thereto and thereafter, the plaintiff claims 10% interest on the judgment sum until the entire debt is liquidated.

The defendants have inspite of several oral and written demands through the 1st defendant, refused or neglected to liquidate the debt.”

The writ of summons was supported by an 18 paragraph affidavit. The relevant paragraphs are reproduced hereunder as follows:

“5. That the first defendant is the Managing Director of the 2nd defendant.

6. That the second defendant is a company incorporated in Nigeria, under the Companies and Allied Matters Act, 1990.
7. That sometime around September, 1995, the deceased Alhaji K.O. Usman had a transaction with the defendants, to buy a Mercedes Benz 300 SEL for the sum of N5.5m (Five million, five hundred thousand Naira).
8. That the deceased made a deposit of N300,000.00 (Three hundred thousand Naira) and a Honda Accord 1994, model, valued at N2.5m, and promised to pay the balance of N2.7m to the defendants.
9. That the said balance was not paid to the defendants before the deceased died.
10. That the defendants later sold the said Mercedes Benz 300 SEL, but did not refund the deposit made by the deceased.
11. That several demands both oral and written were made on the defendants to pay the sum of N2.8m deposited for the said car, but the defendants have refused and or neglected to pay the said debt.
12. That some of those demands were made on my behalf by my then solicitor – Omolade Makaojuola & Co.
13. That the defendants never denied owing the said debt, but always giving flimsy excuses and sometimes, asking for time to pay; through my then solicitor referred to in paragraph 12 above. Some of those letters are marked exhibits ‘B’ and ‘C’.
14. That sometimes around the 29th day of May, 1997, the defendants attempted to make a part payment of N500,000.00, through one Alhaji M.A. Shittu, but I refused to accept it on the ground that, the entire debt be paid in full.
15. That since then, the defendants have still not done anything to liquidate the debt.”

On service of the writ of summons on the defendants/appellants, pursuant to the provisions of the rules of the court below, the defendants/appellants filed a notice of intention to defend together with a supporting affidavit; the important averments which are as follows:

“4(a) That one Alhaji K.O. Usman (now deceased), agreed with the second defendant sometime in September, 1995, to purchase a Mercedes Benz car (300 SEL) at a price of N5,500,000.00 (Five million, five hundred thousand Naira) out of which he paid the sum of N2,800,000.00 (Two million, eight hundred thousand Naira) leaving a balance of N2,700,000.00 (Two million, seven hundred thousand Naira) to be paid as soon as possible. Time was stressed by the second defendant to be of essence in the contract of sale with the said Alhaji K.O. Usman.

(b) The part payment of purchase price comprised of cash in sum of N300,000.00 (Three hundred thousand Naira), and a Honda Accord Car (1994 model mutually valued at N2,500,000.00 (Two million five hundred thousand Naira only).

(c) That Alh. K.O. Usman (deceased) never came back and the said balance of N2.7m (Two million, seven hundred thousand Naira only) remained unpaid from September 1995 to June 1997, when the said K.O. Usman died.

(d) That during the period from September 1995 to June 1997, the vehicles – Mercedes Benz (300 SEL) and Honda Accord, lied in the custody of the second defendant redundant.

The suit was heard on the undefended list and judgment delivered on 21/10/99, in favour of the plaintiff/respondent. Part of the concluding paragraph of the learned trial Judge’s judgment ran thus:

“It is my further view that the requirement of Order 22 rule 3 (1) of the HCCP rules have not been satisfied in that I am unable to find from the affidavit in support of the notice of intention to defend, such disclosed facts that are sufficient to warrant my granting the defendants leave to (sic) defend this suit. .. I hereby, enter judgment for the plaintiffs against the defendants jointly and severally in the sum of Two million, eight hundred thousand Naira only (2.8 million), being outstanding debt against the defendants…”

Dissatisfied with the judgment of the court below the defendants/appellants appealed to this court. The defendants shall hereinafter be referred to as the appellants while the plaintiff shall be called the respondent in this appeal. The appellants filed notice of appeal with two grounds which are reproduced thus: