Jagal Pharma Limited V. Alh. Salisu Hussaini & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment)

The instant appeal is against the final judgment of the High Court of Justice, Kaduna State delivered on 27/4/2010 by T. Zailani J.

The brief facts of the case leading to this appeal are that the 1st Respondent as Plaintiff at the trial Court filed suit No. KDH/KAD/510/07 against the Appellant and the 2nd Respondent as Defendants in the trial Court claiming the following reliefs:

“A. A DECLARATION that the judgment of the Court of Appeal in Appeal No. CA/K/239/2000 setting aside the judgment in suit No. KDH/KAD/560/99 and striking out the said suit for want of jurisdiction of the trial Court is not executory and therefore cannot be a basis for issuance of writ of attachment against the properties of the Plaintiff.

B. A DECLARATION that the Plaintiff has not been adjudged liable by the said judgment of the Court of Appeal in Appeal No. CA/K/239/2000 to pay the 1st Defendant the sum of N3, 250,000 to warrant the issuance of writ of attachment against his properties.

C. A DECLARATION that the payment of the sum of N3, 250,000 by the 1st Defendant to the Plaintiff was made pursuant to the judgment in suit No. KDH/KAD/569/99 and after the setting aside of same by the Curt of Appeal in Appeal No. CA/K/239/2000 for want of jurisdiction, the Plaintiff has a right of lien on the said sum and entitled to retain the said sum in exercise of his right of lien.

D. A DECLARATION that the 1st Defendant is indebted to the Plaintiff in the sum of N3,250,000 being money had and received for a consideration that has failed and which said indebtedness is extinguished by the retention of the said sum by the Plaintiff

E. AN ORDER of injunction in perpetuity restraining the Defendants from taking any steps pursuant to the judgment of the Court of Appeal in Appeal No. CA/K/239/2000 with a view to levying execution on the properties of the Plaintiff.”

Both the 1st and 2nd Defendants at the trial Court filed their respective statements of Defence wherein the Appellant as 1st Defendant contended inter alia that the suit filed against them by the Plaintiff was statute barred. It also raised a counter-claim against the Plaintiff and same is hereby adumbrated as follows:-

COUNTERCLAIM

“15. The 1st Defendant avers that upon the success of its appeal in appeal no CA/K/239/00 against the decision in suit no KDH/KAD/560/99 which appeal judgment was read on 17/4/07 it exercised its right based on the same judgment to ask for and to have a refund of the sum of N3,250,000 paid pursuant to satisfy the judgment in suit no KDH/KAD/560/99 which was set aside on 17/4/07.

16. The 1st Defendant avers that it demanded a refund of the said N3, 250.000 and the costs of N5,000 awarded against the Plaintiff in appeal no CA/K/560/99 and the Plaintiff instead of refunding the money instituted this action and kept the said money wrongfully from the 1st Defendant.

IN THE PREMISES, the 1st Defendant claims from the Plaintiff a refund of the sum of N3,250,000 paid to the Plaintiff as a judgment-debt pursuant to suit no KDH/KAD/560/99 the basis of the same having been nullified on 17/4/07 by the Court of Appeal in appeal no CA/K/239/00, as well as payment of the N5,000 costs awarded”.

The 2nd Defendant now the 2nd Respondent did not file any process and did not participate in the proceedings at the trial Court. Before the filing of suit No. KDH/KAD/510/07 by the 1st Respondent which is the subject of the instant Appeal, the 1st Respondent had by way of suit No. KDH/KAD/560/99 instituted an action against the Appellant at the High Court of justice, Kaduna under the undefended procedure claiming the sum of N3,250,000 being the sum paid to the Appellant for the supply of 500 cartons of Tetmosol soap and for which the Appellant failed and/or refused to supply.

The trial Court in its ruling awarded the sum of N3,250,000 in favour of the 1st Respondent against the Appellant in addition to 10% interest on same and costs of N5000.