Evans Ibeto V. Alhaji Abdulazeez Aminu (2006)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A.

This is an appeal against judgment of the Kaduna State High Court (the lower court) dated 27th November, 2002. By Originating Summons dated 13/10/2002, the plaintiff/appellant claimed against the defendant/respondent as follows;

“An order of the court to exercise his rights under the agreement entered into between the plaintiff’ and the defendant dated 12th July, 1999.

And for such further order or orders of the Honourable Court may deem fit and just to make in the circumstance.”

The facts which gave rise to this appeal are as adumbrated in paragraphs Sand 6 of the affidavit supporting the Originating Summons and also as conceded by both parties, are that on 12/7/1999 the plaintiff now appellant gave a loan of the sum of two hundred and forty thousand Naira (N240,000) to his friend, the defendant. A written agreement of the said loan was drawn, wherein the defendant/respondent was to pay back the loan granted to him by the plaintiff on 12/8/1999. Sequel to that, the defendant/respondent deposited his document for purchase of a plot situated at Malam-Madori Road, Panteka, Kaduna covered by Certificate of Occupancy No KAD/A/001405 and a Sale Agreement between him (defendant/respondent) and the original owner from who he purchased same which was written in Hause language and later translate in to English language. The plaintiff/appellant failed to pay off the loan on 12/8/99 as agreed upon, hence the institution of the suit at the lower court by the plaintiff against the defendant. On 27/11/2002 the case came up for mention at the lower court. The plaintiff was represented by his counsel, one Samuel Idhiarhi Esq., whereas the defendant appeared personally without being represented by any counsel. The learned counsel for the plaintiff told the court that the matter was for mention and asked for an adjournment for mention. On referring to the plaintiff whether he had any objection to the learned counsel’s application, the defendant told the court that he had no objection and went further to admit the plaintiffs claims for the said sum owed by him. He further made an undertaking to settle the entire debt he owed on or before 31/3/2003. The court recorded same on page 9 of its printed record.

The learned counsel for the plaintiff thereupon stated thus;

“Mr Idhiarhi – In the circumstances we pray for Judgment as per our claims and concede to the date of payment.”

The lower court thereafter proceeded to deliver its consent judgment as follows:-

JUDGMENT

“Court – “As the defendant has admitted the plaintiffs claims in the total sum of N240,000.00 per the summons, judgment is hereby entered for the plaintiff and against the defendant per the summons in the total sum of N240,000.00 which the defendant undertook to liquidate on or before the 31/3/2003.”

It is the above quoted judgment that the plaintiff/appellant became dissatisfied with and appealed to this court. To that effect, he filed Notice of Appeal containing two grounds of appeal. The grounds of appeal are reproduced hereunder with the particulars:-

“GROUND OF APPEAL

Ground One

The learned trial judge erred in law in giving judgment to the plaintiff/appellant for the relief not sought and claimed.