Alhaji Baba Berende V. Alhaja Sahara Abdulkadir Usman & Anor (2004)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A.

This is an appeal against the judgment of the Kwara State High Court of Justice sitting at Ilorin in suit No. KWS/55/99 delivered by Hon. Justice M. A. Folayan on 11/11/2002 in favour of the respondents who instituted the action under the undefended list procedure for the recovery of a debt of N525,300.00 together with 10% interest thereon from 15/3/98 till final liquidation. The appellant is dissatisfied with the said judgment and has appealed to this court on five grounds of appeal, out of which learned counsel for the appellant has formulated four issues for determination.

The facts of the case are that the appellant had a business relationship with the late Alhaji Abdulkadir Usman, who is said to have been the husband of the 1st respondent, by virtue of which the appellant bought cows on credit from the late businessman who later died on 10/3/98 in a road motor accident. At the time of his death, the appellant is said to be owing the sum of N565,300.00 for the purchase of 38 cows from the said Alhaji Usman.

In acknowledgment of the debt, the appellant wrote exhibit “B” and followed same up by paying the sum of N40,000.00 part payment of the debt. Later on, the appellant failed to pay the balance of the debt as a result of which the family of the late Alhaji Usman by exhibit A, authorized the 1st and 2nd respondents who are described therein as the widow and business partner of the late Alhaji Usman to, inter alia, institute an action to recover the balance of the debt, which was then N525,300.00. The respondents carried out the instructions by instituting the action resulting in this appeal under the undefended list. Those who issued exhibit A, the letter of authority, are the father, brothers and 1st son of the late Alhaji Usman.

In reaction to the action of the respondents, the appellant filed a notice of intention to defend the action together with an affidavit disclosing a defence, in which he contended that:

(1) That the respondents have no locus standi to maintain the action, and

(2) That the amount claimed had been manipulated to his detriment.

The issues which the learned trial court had to determine are therefore:

(a) Whether the respondents have locus standi to institute the action?, and

(b) Whether the affidavit of defence discloses any defence to the action?.

The court resolved the issues against the appellant, hence the appeal.

The issues identified by learned counsel for the appellant, Salman Jawanda, Esq. in the appellant’s brief of argument filed on 6/2/04 and adopted in argument of this appeal, are as follows:

“(1) Whether or not having regard to the position of the affidavit evidence and exhibits before the court, the learned trial Judge was right in holding that the respondents have and disclosed locus standi (sic) to maintain this suit?.

(2) Having regard to the affidavit evidence before the court, was the learned trial Judge right in holding that the appellant did not disclose a defence on the merit to the respondents’ claims?.