Alh. Sanusi Aliyu Maradun V. Alh. Malami Tambuwal (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment)

This is the Judgment in respect of the appeal filed by the appellant on 12/07/2013 against the judgment of M.U. Dogondaji J. delivered on 17/6/2015 in suit No. SS/17/2013.

The plaintiff’s claim against the defendant at the court below as per the writ of summons issued on 20/3/2013 read thus

“a. The sum of N70,500,000.00 (Seventy Million, Five Hundred Thousand Naira) being debt owed to the plaintiff by the defendant on account of loans granted and consideration for goods sold and delivered by the plaintiff to the defendant.

b. Interest at the rate of 21% on the sum of N70,500,000.00 (Seventy Million, Five Hundred Thousand Naira) from 21/3/2011 until judgment and thereafter at court rate of 10% until satisfaction thereof.

c. Cost

d. And such orders as this honourable court may deem fit to make in the circumstances”

The plaintiff sought and obtained leave to mark the writ “undefended list” The motion and the exhibits attached therewith were later served on the defendant paragraphs 6 – 25 of the supporting affidavit which were very pertinent to the plaintiff’s claims read as follows

“6. That taking advantage of the cordial relationship between us, on several occasions between the year 2010 and 2011 the defendant/respondent approached me with proposal to either grant him a friendly loan or sell some of my landed properties to him on credit.

7. That particularly on 20/9/2010 I, at the instance or request of the defendant/respondent, granted a loan of N5,200,000.00 (Five Million, Two Hundred Thousand Naira) only to the defendant. This debt was acknowledged by the defendant in writing. The said written acknowledgment dated 20/9/2010 which is in Hausa language and its English translation are attached here and marked as EXHIBIT DEBT A and A1, respectively.
8. That since collecting the loan from me the defendant/respondent only made a part payment of Two Hundred Thousand Naira to me, leaving, a balance of N5,000,000.00 unpaid despite repeated demands.
9. That furthermore on 21/9/2010 I, at the instance/request of the defendant/respondent, sold an engine/machine for the molding/manufacturing of interlocking blocks to the defendant/respondent at the price of N2,000,000.00 (Two Million Naira) only. The fact of this sale and of the indebtedness to me on account of same by the defendant/respondent was acknowledged in written in Hausa Language under the hand of the defendant/respondent. The said written acknowledgment which is Hausa Language and its English translation are attached here and marked as EXHIBIT DEBT B and B1, respectively.
10. That again on 22/9/2010 I, at the instance/request of the defendant/respondent, sold my plot of land lying being and situate at the Eastern bye-pass road Sokoto, within the jurisdiction of this honourable court to the defendant/respondent at the cost/price of N6,000,000.00 (Six Million Naira only). The fact of this sale and of the indebtedness to me on account of same by the defendant/respondent was acknowledge in writing in Hausa Language under the hand of the defendant/respondent. The said written acknowledgement dated 22/9/2010 which is in Hausa language and its English translation are attached here and marked as EXHIBIT DEBT C and C1, respectively.
11. That also on 17/10/2010 I, at the instance/request of the defendant/respondent, sold my plot of land lying being and situate at Arkilla area of Wamakko Local Government area within the jurisdiction of this honourable court to the defendant/respondent at the cost/price of N13,000,000.00 (Thirteen Million Naira) only. The fact of this sale and of indebtedness to me on account of same by the defendant was acknowledged in writing in Hausa language under the hand of the defendant/respondent. The said written acknowledgement dated 17/10/2010 which is in Hausa language and its English translation are attached here and marked as EXHIBIT DEBT D and D1 respectively.
12. That similarly on 12/11/2010 I, at the instance/request of the defendant/respondent, sold my piece or plot of land lying being and situate as Gwiwa area of Wamakko Local Government area within the jurisdiction of this honourable court to the defendant/respondent at the cost/price of N2,000,000.00 (Two Million Naira) only. The fact of this sale and of the indebtedness to me on account of same by the defendant/respondent was acknowledged in writing in Hausa Language under the hand of the defendant/respondent. The said written acknowledgment dated 12/11/2010 which is in Hausa language and its English translation are attached here and marked as EXHIBIT DEBT E and E1, respectively.
13. That again on 19/11/2010 I, at the instance/request of the defendant/respondent, sold my house having being and situate at Sokoto within the jurisdiction of this honourable court to the defendant at the cost/price of N10,000,000.00 (Ten Million Naira) only. The fact of this sale and of the indebtedness to me on account of same by the defendant/respondent was acknowledged in writing in Hausa Language under the hand of the defendant/respondent. The said written acknowledgment 19/11/2010 which is in Hausa language and its English translation are attached here and marked as EXHIBIT DEBT F and Fl, respectively.
14. That also on 17/12/2010 I, at the instance/request of the defendant/respondent, sold four of my houses adjoining each other at Sokoto within the jurisdiction of this honourable court to the defendant/respondent at the cost/price of N15,000,000.00 (Fifteen Million Naira) only. The fact of this sale and of the indebtedness to me on account of same by the defendant/respondent was acknowledged in writing in Hausa language under the hand of the defendant/respondent. The said written acknowledgment dated 17/12/2010 which is in Hausa language and its English translation are attached here and marked as Exhibit Debt G and G1, respectively.
15. That is similarly on 25/2/2011 I, at the instance/request of the defendant/respondent, sold my piece or plot of land lying being and situate at Low-Cost area of Wamakko Local Government area within the jurisdiction of this honourable court to the defendant/respondent at the cost/price of N7,000,000.00 (Seven Million Naira) only. The fact of this sale and of the indebtedness to me on account of same by the defendant/respondent was acknowledged in writing in Hausa Language under the hand of the defendant/respondent. The said written acknowledgement dated 25/2/2011 which is in Hausa Language and its English translation are attached here and marked as EXHIBIT DEBT H and H1, respectively.
16. That on 5/3/2011 I, at the instance or request of the defendant, granted a loan of N500,000.00 (Five Hundred Thousand Naira) only to the defendant/respondent. This debt was acknowledged by the defendant/respondent in writing. The said written acknowledgement dated 5/3/2011 which is in Hausa language and its English translation are attached here and marked as EXHIBIT DEBT I and II, respectively.
17. That similarly on 21/3/2011 I, at the instance/request of the defendant/respondent, sold my piece or plot of land lying being and situate at Sokoto within the jurisdiction of this honourable court to the defendant/respondent at the cost/price of N10,000,000.00 (Ten Million Naira) only. The fact of this sale and of the indebtedness to me on account of same by the defendant/respondent was acknowledged in writing in Hausa language under the hand of the defendant. The said written acknowledgment dated 21/3/2011 which is in Hausa language and its English translation are attached here and marked as EXHIBIT DEBT J and J1, respectively.
18. That the defendant/respondent has since taken delivery of all the properties sold to him by me and dealt with same at his absolute discretion.
19. That on account of all these transactions the defendant/respondent is indebted to me in the sum of N70,500,000.00 which yet remains unpaid to date.
20. That ever since the 21/3/2011 when the last transaction was made the defendant/respondent has failed, refused or neglected to seek me to either raise or make any reasonable proposal for payment or settlement of the debts or pay same and has continued to avoid contact with me, including receiving or returning my phone calls.
21. That the April 2011 general election has since taken place.
22. That I have waited patiently and in vain hoping that the defendant would come to settle his debts with me.
23. That on 2/7/2012 I caused my solicitors to write and serve upon the defendant/respondent a letter of demand which letter the defendant/respondent failed refused to neglected yet to acknowledge or respond positively to. A copy of the said solicitor’s letter dated 2/7/2012 is attached here and marked as EXHIBIT DEBT K.
24. That I have virtually exhausted all avenues in ensuring that the defendant/respondent becomes forthcoming in paying his debts to me hence the need for recourse to instituting this action.
25. That I verily believe that the defendant/respondent has no defence to my claim and further to that resolved to institute action against the defendant/respondent under the undefended list cause, subject to leave of this honourable court.”

In line with the Rules of Sokoto High Court Civil Procedure Rules, the defendant in response filed Defendant’s Notice of Intention to defend on the merits on 24/4/13 and 4 paragraph affidavit disclosing a defence on the merits on the same day.

It is necessary to quote the relevant paragraphs of the affidavit filed by the defendant paragraphs 3 of the affidavit read thus;

“3. That on the 22nd of April, 2013, at the chambers, at about 4:30pm, the Defendant informed Ibrahim Abdullahi of counsel in my presence of the following facts, the truth of which I verily believed to be true as follows:

a. That paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 & 25 of the supporting affidavit o the Plaintiff are false to the knowledge of the plaintiff and in furtherance of the denials, the Defendants states the true position as follows:

i. That in the year 2011, he contested for the position of Member, House of Representatives to represent Bakura/Maradun Federal Constituency.