Alhaji Shehu Ashaka V. Samson Chidi Nwachukwu (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM SHATA BDLIYA J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Plateau State High Court delivered by Hon. Justice Y. G. Dakwak on 22th October, 2004, in suit No. PLD/J433/2003. The appellant, who was the defendant in the lower court, was sued by the respondent (who was the Plaintiff,) under the Undefended List vide a writ of Summons claiming as follows:

“The Plaintiff claims from the defendant the sum of (Two Million Naira) N2,000,000.00 being the balance due to the Plaintiff from the defendant on a road contract which the Plaintiff executed at NDLEA office at Lamingo for the defendant and which sum the defendant, despite repeated demands, has failed to pay.

And the Plaintiff claims interest at the rate of 25% per cent from 20th July, 2001, until judgment and thereafter at 10% per annum until the entire sum is paid”.

The application of the Respondent to place the suit on the Undefended List was supported by an affidavit. After hearing the application Ex-parte, the suit was placed on the Undefended List. The appellant was served with the writ of summons together with the affidavit in support thereof. He filed a notice of intention to defend with a supporting affidavit. The trial Court, after considering the notice of intention to defend together with the supporting affidavit, transferred the suit from the Undefended List to the general cause list for hearing. The case proceeded to trial wherein the Respondent testified and called three (3) other witnesses. The appellant testified. He did not call other witnesses.

Written addresses were filed and adopted by learned counsel to the parties, after the taking of evidence. In a reserved judgment, the trial Court entered judgment in favour of the respondent. Dissatisfied with the judgment, the Appellant has now appealed to this Court. A Notice of Appeal dated 25th of October, 2004, was filed on 25th of the same month, 2004, with three (3) Grounds of Appeal. By an application filed on 28th December 2005, the original Notice of Appeal was amended and deemed filed on the same day containing thirteen (13) grounds of appeal. Without their particulars the grounds of appeal are:-

“GROUND 1

The learned trial judge erred in law and misdirected himself on points of law when he held to the effect that, considering all the evidence before him, that the defendant actually subcontracted for the plaintiff some jobs at the NDLEA sit in Jos for the sum of (Two Million, Nine Hundred Thousand Naira) N2.9 million and that the defendant has only paid to the Plaintiff the sum of (Nine Hundred Thousand Naira) N900,000.00 only leaving a balance of N2 million (Two Million Naira) unpaid.

GROUND 2

The learned trial judge erred in law by failing to examine the evidence placed before him to determine whether in law there is valid contract between the parties.

GROUND 3

The learned trial judge erred in law by relying on the evidence of P.W. 4 to award a 22% interest against the defendant when he (defendant) was not a party to Exhibit B1 executed between the Plaintiff and the P.W.4 Company.

GROUND 4

The learned judge of the lower court erred in law when he held as follows:-