A. Ameh A. Akpa Diga V. Adam Tony (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED A. DANJUMA, J.C.A. (Delivering the leading Judgment)

This is an appeal against the decision of the High Court of Justice, Benue State sitting at Otukpo in Suit No.OHC/6/2007 wherein the learned trial court had entered Judgment for the Plaintiff now Respondent in the terms of his reliefs sought.

I shall, because of the deliberate conflicting versions of the statement of the facts of this case and the nature of the claim as set out by the respective counsels in this appeal, set straight the records by setting out the plaintiffs claim at the High Court so that the true perspective of the case could be appreciated. By paragraph 22 of the plaintiff’s statement of claim, the plaintiff claimed as follows:-

a) “AN ORDER directing the Defendant to specifically comply with the terms of the Memorandum of Understanding dated 10th November, 2006 by surrendering his title document in respect of property or properties located at No.23 Old Otobi Road GRA, Otukpo, and Benue State to the plaintiff.

b) AN ORDER of perpetual injunction restraining the defendant, his privies, agents from parading himself or themselves as title holders of the properties located at No.23 Old Otobi Road GRA, Otukpo henceforth and/or doing anything to the properties detrimental to the plaintiff’s interest.

ALTERNATIVELY

c) AN ORDER directing the defendant to pay the sum of Two Million, three hundred and fifteen thousand Naira (N2,315,000) in full satisfaction to the plaintiff.

d) One Million Naira (N41,000,000) general damages for breach of contract and expenses incurred in his effort to recover the contract sum”.

Now to the facts of the case in summary as gleaned from the statement of claim and the evidence led:-

The Defendant, now Appellant who was resident in the United States of America had called the Plaintiff (now respondent) by phone and informed him that he had one Unit of Lincoln Navigator 2000 series Jeep to sell. Plaintiff indicated interest and they agreed on the purchase price of Two Million, seven hundred thousand Naira (N2,700,000) only.

The Defendant directed that an advance payment as deposit of Two Million Naira (N2,000,000) be made to him through PW1 – his relation and PW1, who was with the Plaintiff during the phone discussion on the contract was instructed through the same Telephone to collect the Two Million Naira (N2,000,000) from the plaintiff and to pay into the Defendant’s Domiciliary Account in Lagos. This was done and PW1 received a confirmation from the Defendant the following day.

In their verbal agreement over the telephone, the Jeep was to be delivered within four (4) weeks. The contract was made in May 2008. In the month of August of the same year, plaintiff gave a further sum of Three Hundred thousand Naira (N300,000) to the Defendant in Nigeria on request to enable him clear and deliver the vehicle which was said to be at Cotonuou, then, but all efforts at delivery having failed, the parties entered into an agreement, Exhibit ‘A’ in this suit to have the entire sums refunded on or about 31-12-2006 or to consider the Defendant’s plot and building thereon at No.23 Old Otobi Road GRA, Makurdi as vested on the plaintiff automatically in default of the full payment as aforesaid. The Agreement which was called the “Memorandum of Agreement” was made on the 10th day of November, 2006.

Defaulting in paying at the agreed latest date of 31st December, 2006, the Plaintiff in reaction has then instituted this suit for breach of contract, wherefore he seeks the enforcement of the terms of the Memorandum of understanding signed by the parties.

It should be stated that after the service of the Writ of Summons and Statement of Claim on the Defendant/Appellant and in the default of the entry of Appearance, the matter proceed to trial and on the date fixed for Judgment, the Defendant/Appellant who then was present sought to move the court by his motion to arrest or suspend the delivery of the Judgment fixed for that date, and extension of time and leave for the Defendant to enter a Memorandum of Conditional Appearance and to file his Statement of Defence and to be allowed to recall and to cross examine the plaintiff’s witnesses in evidence. After taking arguments based on Briefs of argument filed by the respective counsels, the trial court refused all the prayers as made and proceeded to sign Judgment for the plaintiff (now respondent)