Alphonsus Oriebosi V. Andy SAM Investment Company Limited (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 Kano State High Court of Justice delivered on the 28th September, 2006 by Tani Y. Hassan J. in suit No. K/623/2004, as well as the ruling delivered on the 2nd November, 2006.

The Respondent was the Plaintiff at the lower Court while the Appellant was the 2nd Defendant.

By writ of summons dated 15/10/2004, the Respondent claims jointly and severally against the defendants the following:

1. The sum of 2,178,400.00 (Two million one hundred and seventy eight thousand, four hundred naira) being the outstanding balance of the value of the goods supplied on credit by the plaintiff to the 1st defendant and for which payment the 2nd defendant guaranteed.
2. 10% interest rate per annum beginning from date of judgment until final liquidation of the entire judgment debt.
3. Cost of this action including solicitors fee of N300,000. 00.

At the hearing of the matter, the 2nd defendant who had filed and served his statement of defence was represented, while the 1st defendant was not represented. Three witnesses testify for the plaintiff while the 2nd Defendant testifies in his defence and called one other witness.

At the end, judgment was entered in favor of the plaintiff against the defendant. The judgment reads inter alia as follows;

“From the evidence adduced before the Court the plaintiff has proved its claim jointly and severally against the defendants. Judgment is accordingly entered for the plaintiff against the defendants jointly and severally in the sum of N2,178,400.00 minus N200,000.00 paid at the police station being the outstanding balance of the value of goods supplied on credit by the plaintiff to the 1st defendant and which payment the 2nd defendant guaranteed.

The defendants shall pay the plaintiff 10% Court interest from the date of judgment until the judgment sum is liquidated. The defendants shall also pay the plaintiff N4,040.00 being the cost of filling this action”.

It is against the above judgment the Appellant’s notice of appeal dated 9/11/2006 was filed on 6/11/08 and it contained 3 grounds of appeal.

The Appellant in accordance with the rules of this Court filed his brief of argument dated 27/8/2007. The Respondent filed a notice of preliminary objection to the competence of the appeal and it was dated 22/12/2009. While the Appellant filed a reply to the Respondent’s preliminary objection. The Respondent however did not filed any brief of argument as an alternative to the preliminary objection in case his arguments on the preliminary objection failed.

The Appellant in his brief of argument abandon Ground No. 3 and distilled a lone issue for determination of the appeal from the remaining 2 grounds of appeal (i.e Grounds 1 & 2) as follows:

ISSUE FOR DETERMINATION

“Whether the judgment given by the Court below against the Appellant in favour of the Respondent Company can be supported having regard to the avermen9 of the Respondent company in its statement of claim vis-a-vis the evidence led in support thereof.”

In considering this appeal this Court will commence its deliberations by first considering the preliminary objection raised by the Respondent.