Chief Clement O. Okafor V Anthony Abumofuani (2016)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C. 

This appeal is against the judgment of the Court of Appeal, Enugu Division (the lower Court) delivered on 31st day of May, 2015 which affirmed the decision of the High Court of Enugu State (Coram Ahanonu J) (“the trial Court”) delivered on 21st November 2002. The Respondent, herein, as the plaintiff at the trial Court, instituted the suit before the trial Court claiming the under mentioned reliefs against the present appellant who was the defendant thereat. The reliefs claimed by the plaintiff/respondent against defendant now appellant are as follows:-

“1. N125,000.00k being agency commission due to the plaintiff as remuneration for procuring a buyer of the defendant’s landed property.

2. Interest on the aforesaid amount at the rate of 21% per annum until the date of the judgment and 5% per annum on the judgment debt.
3. N100,000.00k and N200,000.00k as special and general damages respectively for the humiliation suffered by the plaintiff by virtue of his arrest, detention and molestation by the police as a result of malicious and false report alleging criminal conduct against the plaintiff which cannot be substantiated”.

The facts which gave rise to the above mentioned claims in the suit filed before the trial Court by the plaintiff (now respondent) against the defendant (appellant) are briefly summarised as below. As could be gleaned from the Record of appeal, the defendant, who is the present appellant had entered into an agreement with the plaintiff (now respondent) for the plaintiff to secure somebody to purchase his landed property situate at No.5, Igwesi Close in Trans Ikulu Qtrs of Enugu town in Enugu State on an agreed commission to be paid by the appellant to the respondent. The respondent, in the light of the agreement, struggled and secured a buyer of the said landed property in person of one Dan Obele who agreed to buy the land at a cost of Two Million, Five Hundred Thousand Naira only (N2,500,000.00). The purchase price was paid through the respondent herein, who acted as an agent for both the appellant and the purchaser of the said landed property. However, before the property was paid for, it was discovered that the property was not free from encumbrances, because the same property was earlier used as collateral for a loan applied for and collected by the appellant at the Nigerian Agricultural Bank.

That notwithstanding, the buyer Dan Obele agreed and did pay the outstanding bank loan owed by the appellant to the Nigerian Agricultural Bank in settlement of the bank loan and thereafter, the balance of the sum of One Million, Eight Hundred and Seventy Thousand Naira (N1,870,000.00) was paid to the appellant. All these payments were made through the respondent herein, in the presence of the appellant’s representative one Goerge Okonkwo who negotiated on behalf of his principal the appellant, and who incidentally was also the appellant’s in-law.

At the end of the transaction, the appellant refused or failed to honour his agreement with the respondent by paying him the commission of N125,000.00 as earlier agreed upon which represents 5% of the purchase price, despite repeated demands by the latter. Instead, the appellant resorted to the use of acts of harassment, and intimidation against the respondent which culminated into lodging complaint to the police against the respondent leading to the arrest and detention of the latter, all aimed at suppressing and frustrating and scaring him and discouraging the respondent from pursuing his legitimate claims of the agreed commission due to him from the appellant.

When it became apparent, that the appellant was not ready to pay him his entitlement, the respondent took the last option by seeking redress in Court and filed Writ of Summons against the appellant at the trial Court and made the claims or reliefs earlier adumbrated in the fore paragraphs of this judgment. Upon being served with the Writ of summons and the Amended statement of Claim by substituted means, the appellant as defendant at the trial Court, refused or failed to enter appearance. The plaintiff now respondent thereupon moved the trial Court by filing a motion praying it to enter Summary/Default judgment in his favour. The trial Court consequently entered judgment in part in favour of the plaintiff/respondent against the defendant now appellant on the first and second claims/reliefs and adjourned the third claim/relief which relates to special and general damages. Piqued by the partial judgment delivered against him, the appellant/defendant filed a motion on notice at the trial Court praying it to set aside the Default judgment vide a motion dated 24/1/2000.The said motion was heard. The trial Court in the end, refused to set aside its default judgment, but it however granted the appellant extension of time to file his statement of defence on the third claim contained in the plaintiff’s/respondent’s Amended Statement of claim. At the conclusion of the case, the trial Court awarded to the respondent a sum of N35,000.00 as general damages against the defendant/appellant.

The present appellant became dissatisfied with the decision of the trial Court, hence he appealed to the Court of Appeal (hereinafter referred to as “the lower Court”). After hearing the appeal, the lower Court dismissed same and affirmed the decision of the trial Court. In its considered judgment dated 31/5/2005 the lower Court at page 186 of the Record of Appeal held as follows, per Adekeye JCA (as she then was).

“The trial Court was right in holding that the respondent is entitled to general damages. This Court finds the conclusion of the trial Court impeccable and has no justifiable reason in law and facts to interfere with same. This appeal is unmeritorious it is therefore dismissed. N10,000.00 cost is awarded in favour of the respondent”.

It is pertinent at this stage to say, that after the trial Court delivered its judgment, the appellant filed four different appeals before the lower Court with leave of the latter, and it consolidated the said appeals. Both the appellant and respondent formulated three similar issues for the determination of the consolidated appeals in their respective briefs of arguments filed before the lower Court. But on the day the appeal was fixed for hearing, the appellant filed a motion on notice praying the lower Court to strike out both issues one and two proposed for determination in the respondent’s brief of argument on the ground that the said two issues did not arise from the grounds of appeal he had filed earlier. The lower Court after hearing the motion on notice filed by the appellant, proceeded to hear the appeal as it found that the issues raised by both parties were very much similar and it thereafter adopted the issues raised in the appellant’s brief of argument in determining the appeal. It ultimately dismissed the appellant’s appeal in its judgment delivered on 31st of May, 2005.

Aggrieved further by the judgment of the lower Court, the appellant appealed to this Court vide a Notice of appeal dated 21st of June, 2005 containing four grounds of appeal.

From the four grounds of appeal, the appellant decoded four issues for determination in the Appellant’s brief of Argument settled by Chief Obile Onukwuli dated and filed on 9/9/10, which read as below:-

“(1) Whether the Court of Appeal has jurisdiction to disregard the appellant’s motion on notice dated and filed on 24/3/2005 challenging the competence of issues 1 and 2 formulated by the Respondent.

(2) Whether the Court of Appeal has any power to discountenance the order which granted leave to the appellant to raise new issues of lack of jurisdiction by the trial Court which was granted by a different panel of the same Court.