Aloysius Obute V. Adebayo Dauda Abdulkareem (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Kaduna State High Court of Justice, delivered on 28th September, 2011 by J.S. Abiriyi J.

The Appellant was the Plaintiff at the lower Court while the Respondent was the Defendant.

By the amended statement of claim dated 11th October, 2010 but filed on 30/03/11 in suit No. KDH/KAD/951/2010 the Appellant claimed against the Respondent the following reliefs;

1. “The Plaintiff claims the sum of N2,340,000.00 being balance of agreed contract proceed share with defendant.
2. Interest at the rate of 10% on judgment sum till same is fully and finally liquidated.”

The brief summary of the facts that gave rise to this appeal as pleaded by the Appellant were that the Appellant, as Plaintiff sued Respondent, claiming the sum of N2,340,000.00 being balance of contract proceed share, mutually agreed under a joint venture agreement to finance a contract in the sum of N34 Million awarded to a corporate nominee of the Respondent by the Kaduna State Government.

The sum of N8.7 Million was paid by the Appellant in pursuance of the financial agreement with the Respondent. The Respondent agreed to give Appellant the sum of N5.5 Million, exclusive of cost of his investment, as consideration after executing the contract.

The Respondent later borrowed the sum of N140,000.00 from the Appellant and promised to defray same in addition to his earlier commitment under joint venture agreement with the Appellant.

It was the Appellant case at the lower Court that the Respondent only paid the sum of N12 Million as part of his commitment in January 2010, leaving unpaid balance of N2,340,000.00 in breach of the agreement.

The Respondent had given a cheque of N2,340,000.00 for payment of the said balance, but it was returned unpaid, same was tendered in evidence and admitted by the lower Court.

The Respondent at the trial Court was represented by counsel and had filed his defence, but he never adduced evidence nor addressed the lower Court after the Appellant closed his case.

The trial Court in its considered judgment on 28th September, 2011 held inter alia as follows;

“…..It must be stated from the onset that the Plaintiff’s further deposition as well as depositions of the other witnesses called by him are not borne out by his amended statement of claim and therefore they go to no issue…..It is not possible to hold on the pleadings and evidence that the cheque exhibit 2 was issued by the defendant as balance for an outstanding debt. …..There is even no evidence that the defendant had paid an initial sum of N12 Million to the Plaintiff leaving a balance of N2,340,000.00……No document has been tendered in the form of a receipt to show that the defendant received any money from the Plaintiff……It is clear from the forgoing that the unchallenged evidence has not sufficiently established the claim of the Plaintiff.”

Dissatisfied with the said judgment the Appellant filed a notice of appeal containing five (5) grounds of appeal.

In accordance with the rules of this Court, the Appellant filed his brief of argument dated 13th May, 2012. The Respondent however failed to file any brief and was not represented. Therefore, this Appeal will be determined on the Appellant’s brief alone.