Alhaji Musa Sanusi Olaiya V. Mr. Boniface Okeke (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE OGBUINYA, J.C.A. (Delivering the Leading Judgment)

This appeal germinated from the judgment of the High of Court Kwara State in Suit No: KWS/10/2008, Coram E. B. Mohammed, J. delivered on 23/07/2009, wherein the appellant’s action was dismissed.

Flowing from the record of appeal and other processes filed, the facts of the case, which culminated in this appeal, are simple. The appellant and the respondent were the claimant and the defendant respectively in the lower court. Sometime in 2005, the appellant, a businessman, approached the respondent for a financial assistance of N50,000.00 to enable him augment his financial obligation regarding a contract he was executing in Abuja.

The respondent acceded to the appellant’s request on the condition that he pledged his Peugeot 504 SR. saloon car with registration number AZ 303 ABJ, Abuja, Engine No. 39374707 and chasis No. VF 3504MDIF3974707 as collateral security for the loan. The parties entered into a written agreement on 13/01/2005 to the effect that the vehicle was sold to the respondent with an option to the appellant to repurchase same on or before 12/02/2005 for the fixed price of N60,000.

Subsequently, the appellant claimed that he went to the respondent, on 10/02/2005, to exercise his right of repurchase of the vehicle, but the respondent refused on the reason that it was sold to him and he had sold same to a third party. On the other hand, the respondent claimed that the appellant defaulted in redeeming the pledged vehicle as agreed and he repaired it and sold it to a third party on 05/07/2005.

Following the above background facts, the appellant sued the respondent, via a writ of summons, in the lower court on 28/01/2008. In the said suit, the appellant claimed, against the respondent to wit: a declaration that the purported sale of the vehicle was null and void, an order for a return of the vehicle or N500,000.00 as its worth, interest on the said N500,000.00, general damages of N100,000.00 and cost of the suit. The respondent, duly, reacted to the appellant’s action. Thereafter, the matter proceeded to full-scale trial.

During the trial, the appellant testified in person without calling any other witness. Similarly, the respondent gave evidence in person without fielding any other witness. At the closure of the cases of the parties, they addressed the lower court, vide filing and adoption of written addresses.

The lower court, on 23/07/2009, delivered its decision wherein, on page 15 lines 18 and 19 of the printed record, it held:

“Accordingly, all the 6 heads of claim numbered 9(a) to (f) in the claimant’s statement of claim are hereby dismissed for want of proof”.

The appellant was aggrieved by that decision. Sequel to that dissatisfaction, the appellant filed a one-ground notice of appeal, found on pages 53-54 of the record, in which he prayed this court to: “Allow the Appeal by setting aside in its entirety the judgment of the trial court delivered on 23/07/2009 and grant all the Appellant’s reliefs”. In consonance with the rules of this court, the parties filed and exchange their briefs of argument.

The appeal was heard on 20/11/2012. In that wise, learned counsel for the appellant, Joseph Oboite, Esq., adopted the appellant’s brief of argument, filed on 03/06/2011, but, deemed filed on 15/02/2012, and the appellant’s reply brief, filed on 26/03/2012, both settled by S. A. Bamidele, Esq., as representing his arguments in support of the appeal.

He prayed the court to allow the appeal. In the same vein, learned counsel for the respondent, O. M. Lawal, Esq., intimated the court that the respondent filed a notice of preliminary objection on 02/10/2012 with its argument incorporated in the respondent’s brief. Learned counsel adopted the respondent’s brief of argument, filed on 15/03/2012, as forming his submissions in support of the preliminary objection and against the appeal.

He urged the court to uphold the objection or to dismiss the appeal.

The law commands me to attend to the respondent’s preliminary objection first. This is because, the preliminary objection more or less evinces a jurisdiction issue which is aimed at terminating the life span of a matter in limine, see Uwazurike v. A.G. Fed (2007) 8 NWLR (pt. 1035) 1; B. A.SF (Nig.) Ltd. v. Faith Enterprises Ltd. (2010) 4 NWLR (pt. 1183) 104; SPDCN Ltd. v. Amadi (2011) 14 NWLR (pt. 1266) 157; FBN Plc. v. T.S.A. Ind. Ltd. (2010) 15 NWLR (pt. 1216) 247.