Chief Olukayode Akindele V. Kayode Abiodun (2001)

LawGlobal-Hub Lead Judgment Report

OYEBISI F. OMOLEYE, J.C.A.

This is an appeal against the Ruling of I. U. Bello J., of the High Court of the Federal Capital Territory sitting at Gwagwalada delivered on 23/02/2004 in suit No. FCT/HC/CV/1061/02 in which he dismissed the Appellant’s application and refused to strike out the substantive suit.

The Respondent as plaintiff in the lower Court instituted an action at the High Court of the Federal Capital Territory holden at Gwagwalada in suit No. FCT/HC/CV/1061/02 claiming against the Appellant as defendant the following reliefs both in the particulars of claim and the statement of claim filed on 8/10/02:

“a. The sum of N400,000.00 (four hundred thousand naira only) being the outstanding payment due on works executed by the plaintiff for the defendant at the defendant’s own request and interest thereon at the rate 21% from April 2000 to the date of judgment and thereafter 10% Court interest till the debt is liquidated.

b. The sum of N80,000.00 (eighty thousand naira only) being the plaintiff’s solicitors agreed professional fees for prosecuting this claim.

c. The cost of this action.”

The background facts according to the Respondent as stated in the statement of claim are that sometime in April 2000 the Appellant orally instructed and directed him to procure and instal 5000 litre water tank, pumping machine, shaving mirror and some other facilities in House No.2 Maitama Sule Street, Asokoro District, Abuja.

The agreed price for the works according to the Respondent was four hundred thousand naira only (N400,000.00) which was to be paid not later than thirty (30) days after the installation of the 5000 litre water tank and the other facilities.

The Respondent immediately procured, installed and supplied the 5000 litre water tank and all the other facilities as agreed. The Respondent stated that he acted purely on the instruction, direction and promise of the Appellant in executing the works. The Appellant personally inspected and certified that the water tank and the other facilities were correct and according to specification. The Appellant equally supervised the installation of the items. However, after the completion of the works, the Respondent demanded for payment but the Appellant continued to make unfulfilled promises. On 22nd May 2002 the Respondent went to the Appellant’s office to demand payment but he was given a note by the Appellant to one Mr. Esiet concerning his payment which yielded no positive result.

Despite repeated demands the Appellant refused, neglected and failed to pay the sum of four hundred thousand naira only (N400,000.00) due and payable to the Respondent on the works executed. The Respondent then instructed his solicitors to write a demand letter dated 21st February 2002 to the Appellant. When the Appellant still refused to pay him, he instituted an action at the High Court of the Federal Capital Territory to recover the money from the Appellant.

The Appellant, as defendant in the lower Court filed a statement of defence. According to the Appellant the house at No.2 Maitama Sule Street Asokoro District, Abuja, Nigeria is not his personal property but an official residence allocated to him by the National Planning Commission (The Presidency) while he was the Special Assistant to the Chief Economic Adviser to the then President of the Federal Republic of Nigeria. The work purportedly done by the Respondent at the said No.2 Maitama Sule Street, Asokoro District, Abuja, Nigeria was officially awarded to the Respondent by the Tenders Board of the National Planning Commission. The Appellant stated that all he did as the occupant of the premises was to confirm to the SEO(Maintenance), Mr. Esiet of the National Planning Commission, that the Respondent should be paid for the work done at his official residence.

The Appellant also contended that the Respondent could not have rightly demanded payment from him as he did not award the contract in person or in his private capacity to the Respondent. The Appellant therefore counter – claimed as follows:

“1. The Defendant was in London with his family when the House-help at his Abuja Guest House No. 675 Samora Machel Street Asokoro, Abuja telephoned to tell him and his family members that a Court process had been pasted at the door of his Guest House on the 12th June, 2003 in the view of neighbours and passers-by of the very busy street.

2. The Defendant had to immediately abandon all his engagement in London and headed for Nigeria, Abuja to find out what the problem was.
3. The Defendant was put into expenses of loss of business and had to procure flight Ticket to Nigeria to find out the reason for the placing of the Order at the instance of the Plaintiff.
4. The Defendant had been made to incur loss in the sum of Eight Hundred Thousand Naira (800,000.00) as loss of business, loss of profit, cost of ticket etc.
5. The Defendant has had to pay the sum of Two Hundred and Fifty Thousand Naira (N250,000.00) to the Counsel Messrs Biodun Akin-Aina & Co. Via receipt No. 000429 of 16th June, 2003 as deposit in defence of Plaintiff’s Claim.
6. Whereof the Defendant Counter-Claims the sum of One Million And Fifty Thousand Naira (N1,050,000.00) from the Plaintiff.”

Furthermore, the Appellant in the court below filed an Application on notice on 25/6/03 in which he prayed the court to strike out the suit for lack of proper defendant on the following, grounds: