Michael Adeboye V. Steve Baje (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the Ruling of the High Court of Lagos State, Per Williams J., delivered on the 17th day of September, 2014.

The brief fact of the case before the trial Court is that the Respondent, desirous of acquiring a private property within Eric Moore Estate, Surulere, Lagos approached the Appellant in respect of a property known as Block S House 4, Royal Estate, Phase 1, Eric Moore Surulere, Lagos.

At the conclusion of negotiations between the Appellant and Respondent, the Appellant issued an offer letter to the Respondent who subsequently made a fifty percent down payment of N20,000,000.00 (Twenty Million Naira) with a further payment of N22,000,000.00 (Twenty – Two Million Naira). The Respondent then alleged that after receipt of the said money, the Appellant became evasive for several months and refused to let the Respondent into the property as promised.

When it became apparent that there was no property to be given to the Respondent and upon refusal and failure of the Appellant to refund the money collected with respect to the alleged property, the Respondent filed an action in the High Court of Lagos State, in suit No. LD/832/2012 wherein the Respondent as Claimant by his Writ of Summons and Statement of Claim claimed against the Appellant as Defendant the following reliefs:-

“(a) The sum of N42,000,000.00 (Forty-two Million Naira) only being money paid to, had and received from the Claimant by the Defendant and in respect of the sale of Block S House 4, Royal Estate, Phase 1, Eric Moore, Surulere, Lagos, vide the defendant has refused, neglected and failed to pay to the Claimant despite repeated demands.

(b) Interest in the said sum of N42,000,000.00 at 2% per annum from June, 2011 till final liquidation.

(c) Cost of this action.”

The Respondent’s originating process was accompanied by an application for summary judgment brought under Order 11 Rule 1 and Order 19 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2004. In compliance with Order 11 Rule 4, the Appellant/Defendant filed his Statement of Defence, Witness Statement on Oath, List and Copies of document(s) to be relied on, Counter Affidavit in opposition to Motion for Summary Judgment as well as accompanying Exhibits. On 17th day of September, 2014, the Learned Trial Judge entered final judgment in favour of the Respondent in the sum of Forty One Million Naira (N41,000,000.00).

Dissatisfied with the decision of the trial Court, the Appellant appealed against the said judgment vide his Notice of Appeal dated the 22nd day of September, 2014 but filed on the 25th day of September, 2014 on three grounds.

In compliance with the Rules of the Court, parties by their counsel filed and exchanged briefs of argument. Appellant’s brief of argument dated 28th day of May, 2015 and filed on 1st day of June, 2015 but deemed 4th day of June, 2015 as well as a Reply Brief dated 29th day of January, 2016 and filed on 1st day of February, 2016 but deemed 2nd day of February, 2016 was settled by Enyinnaya Uwaezuoke Esq., of Phoenix Solicitors. The Appellant identified three issues for determination thus:

1. “Under Order 11 Rule 1 and Order 19 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2004 (also the same as Order 11 Rule 1 and Order 19 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2012, can the Claimant succeeded,

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(sic) on the entire sum claimed when the evidence in support of the Motion thereof does not support the total sum claimed.

2. Under the rule that unchallenged, averment in an affidavit are deemed admitted by a party who have had, opportunity to challenged (sic) them but choose not to do so can the lower Court unilaterally discountenance evidence of payments made by the Appellant (defendant) and, still give Judgment for the Respondent including sums already paid.
3. To maintain an action under Order 11 of the High Court of Lagos State (Civil Procedure) Rules 2012, a Claimant must show by clear evidence that the sum claimed was owed by the Defendant and still remain unpaid, the evidence here is that at the time of bringing this action the total sum claimed was not owed. To what extent can the Court still believe the Claimant that the defendant is liable to the whole sum claimed.”

The Respondent’s Brief of Argument dated and filed on the 3rd day of September, 2015 but deemed on 2nd day of February, 2016. Same was settled by Chief Nelson O. Imoh and Kini Inemkpo, Esq., of Nelson and Nelson Law firm. A sole issue was formulated therein for the