David Kumbul V. David Umeh (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL C. OSEJI, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Benue State, Gboko Judicial Division, delivered by J.S. Ikyegh J. on the 17th day of March 2000 in Suit No GHC/50/99

The appellant in this appeal was the defendant in the lower court while the respondent was the plaintiff therein. The said respondent had as plaintiff claimed the following relief at paragraph 15 of the statement of claim dated 17-5-1999 and filed on 19-5-1999.

(15) “whereof the plaintiff claim is for the sum of N135,000.00 debt owed to the plaintiff by the defendant”.

(See page 4 of the Record)

The facts of the case, briefly stated, are that sometime in 1997 the Benue cement company plc. (BCC PLC) requested the respondent to supply her with a torque converter machine at the sum of N600,000. The respondent being faced with some difficulties sought the assistance of the appellant to facilitate the supply and payment for the said machine at a commission of N50, 000. A written agreement was made to that effect. The cost of the machine was subsequently reviewed upward to N800,000 by the BCC PLC. This led to a disagreement between the parties as to the rightful beneficiary of the review and following the intervention of friends,it was agreed that the appellant should pay the total sum of N550, 000 to the respondent for the machine.

He was instantly paid the sum of N300,000 leaving a balance of N250,000 and an agreement was written to that effect. The respondent sometime thereafter advanced a loan of N5000 by cheque to the appellant which was also evidenced in writing. It however took some pestering for the appellant to pay part of the money in branches of N40000, N10,000 and N70,000 thus leaving a balance of N130, 000 out of the outstanding N250,000 for the machine and adding the N5000 loan brings the total sum claimed to N135,000. The appellant however,claimed to have liquidated any money he owed the respondent.

Pleadings were subsequently filed and exchanged by the parties and at the hearing of the case which commenced on 18-1-2000, the plaintiff testified as PW1 and called one witness. The defendant in his defence testified as DW1.

In a judgment delivered on 17/3/2000 the lower court in finding in favour of the plaintiff held inter-alia as follows:

“I will accordingly,base my decision on Exhibits D and G and find as a fact that devoid of evidence from defendant showing liquidation of the two debts documented in Exhibits D and G, I find defendant liable for the sum of N135, 000 in favour of plaintiff as debt owed the plaintiff by him on the strength of Exhibits D and G.”

Being aggrieved with the said judgment,the defendant (now appellant) filed a Notice of Appeal dated 17-3-2000 and filed on 20-3-2000. It contains three grounds of appeal which shorn of their particulars read thus: –

GROUNDS OF APPEAL

(1) “The Trial Judge erred in law when he treated Exhibit ‘A’ and Exhibit ‘C’ as one contract or transaction.

(2) The Trial Judge erred in law when he failed to consider the evidence of the appellant which was admitted by the respondent that the former paid the sum of N70,000 (seventy thousand naira) through the police.”