Alhaji Usman Tunga V. Alh. Malami Yaro Makera (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is the Appeal against the judgment of High Court of Sokoto sitting on appeal delivered on 8/7/2004 wherein the learned judges dismissed the appeal of the appellants in an interlocutory appeal as lacking in merit.

The facts of the case before the lower court are as follows: –

The appellant is a licensed agent.

The respondent contracted the sale of his properties to him.

The appellant sold the property for the sum of N2,500,000. and made payments to the respondent out of the proceed of the sale leaving a balance of N1,475,000.

The Respondent after several demands for the balance files an action against the appellant is suit No. UAC/111/SK/CV/F1/102/97 for its recovery. Judgment was given in favour of the Respondent in the sum of N1,475,000.

The Respondent subsequently successfully applied for execution of the judgment for the recovery of the judgment sum.

What transpired in court before the Respondent’s application was granted on 5/5/2000 is well set out on pages 1 – 3 of the record of the Upper Area Court III Sokoto. It is necessary for clarity’s sake to quote hereunder what transpired.

“I, Aliyu Abubakar Sayynna, plaintiff’s counsel (lawyer) Alhaji Malami Alkammawa. Am seeking this court to execute the judgment delivered against Alhaji Usman Tunga that he should pay Alhaji Malami Yaro the money of his house.

1. N1,400,000.00 since 10/3/98 which up to this moment is not been paid because of that I want the court to help me to collect for us those money N1,400,000.00.

The court agreed to the application of the counsel to the plaintiff Alhaji Aliyu Abubakar made to send summons to invite.

2. Alhaji Usman Tunga to appear before this Honourable Court on 14/1/2000. today, 14/1/2000 the plaintiff’s counsel Aliyu Abubakar and representative of the defendant Abdulkadir they appear before this court with the denfendant Usman Tunga.
3. Usman Tunga do you that you are owing Malami Yaro the balance of his money in sum of N1,100,000.00 and you have not paid him.

USMAN: Here is his counsel Abdulkadir he said he wants him to be given permission to estimate the debt Usman is owing.

COURT: agreed to this request and adjourned the matter to 17/1/2000

4. Today 17/1/2000 the plaintiff and the defendant together with the counsel to the plaintiff Aliyu Abubakar and the counsel to the defendant Abdulrahman.

COURT: Lawyer of the defendant Abdulkadir what do you say about the estimate you said you will prepare that you will bring today 17/1/2000.