Ahmed Ali Kahtan V. Muzakh Engineering Co. Ltd (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ZAINAB A. BULKACHUWA. J.C.A.(Delivering the Leading Judgment)

By a writ of summons filed before the High Court of Justice Borno State on the 18th day of May, 2000 coram Zannah J., (as he then was) the respondent as plaintiff claimed the following reliefs;

‘Whereof the plaintiff claims against the defendant the following reliefs;

(a) Specific performance for the payment to the plaintiff, the total sum of N13,478,531.78k (Thirteen Million, four hundred and seventy eight thousand five hundred and thirty one naira, seventy eight kobo), as agreed in the contract dated 15th September. 1998.

(b) 21% interest annually, thereon from the 30th of July. 1998 till judgment.

(c) 10% interest monthly from judgment till it is fully liquidated.

(d) N5.000.000.00 being general damages.

The defendant entered appearance on the 25th September, 2000 and parties after exchange of pleadings joined issued and the matter went into trial. The plaintiff testified, called two other witnesses and tendered four exhibits. Two witnesses testified for the defence. Counsels addressed court and in a considered judgment delivered on the 16th January. 2002 judgment was entered for the plaintiff for specific performance as claimed, 10% interest on the Judgment debt from date of Judgment till liquidation of same, N10.000 general damages and N2.000 as costs.

The defendant being dissatisfied with the judgment of the trial court filed an appeal on the 11/4/3002 on three grounds of 7/4/2003 filed two additional grounds of appeal. Parties filed and exchanged their respective briefs.

The appellant in his brief of argument deemed filed on the 7/4/2003 identified these issues;

(1) Whether it can be said that the appellant was a party to the agreement the specific performance of which the learned trial judge has ordered against it.

(2) Whether it can be said that exhibit PL1 was properly admitted in evidence by the learned trial judge.

(3) Whether in the face of the memorandum and articles of association of the appellant, exhibit PL1 cannot be said to be ultra vires and unenforceable.

(4) Whether it is proper exercise of his discretion for the learned trial judge to have granted a decree of specific performance, special and general damages ion one claim.