MR. Douglas Iyeke V. MR. Lucky Abu (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of High Court of Justice, Edo State of Nigeria, Benin Judicial Division in Suit No: B/36/2011, MR LUCKY ABU VS. DOUGLAS IYEKE, delivered on the 28th day of October 2013, in which the court gave Judgment in favour of the Plaintiff/Respondent.

?The facts of the case are that the Plaintiff/Respondent instituted an action at the Lower Court vide a Writ of Summons and claimed against the Defendant/Appellant as follows:-

(a) The sum of (N1,550,000.00) One million, five hundred and fifty thousand Naira) being the balance of money being the value of the product (AGO) deposited in the Defendant’s underground tank by the Plaintiff which product the Defendant converted to himself without the consent nor approval of the Plaintiff.

(b) Interest on the said sum at 21% from the 30th day of November 2010 when the instalmental payment of the balance N1,550,000 (One million, five hundred and fifty thousand) was supposed to commence based on the agreement dated 8/10/2010 till Judgment is delivered and thereafter 10% until the said amount is fully paid.

?At the

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conclusion of the trial, the learned trial Judge awarded the sum of (N1,550,000.00) One million, five hundred and fifty thousand Naira being the value of the balance of 1,550 litres of AGO deposited by the Plaintiff/Respondent in the Defendant/Appellant’s underground tank which the Defendant/Appellant was not able to produce for the Plaintiff/Respondent. The claim for interest was dismissed and a cost of (N10,000.00) Ten thousand Naira only was awarded.

Dissatisfied with the said Judgment, the Appellant appealed to this court vide the Notice of Appeal filed on the 19th November, 2013.

The learned counsel for the Appellant formulated four issues for the determination of the Appeal. The issues are reproduced as follows:

(1) Whether the learned trial Judge was right in entering Judgment in favour of the Respondent based on the purported oral agreement between the Respondent and the Appellant rather than Exhibit “A” which is the contract sought to be enforced by the Respondent.

(2) Whether the learned trial Judge was right in entering Judgment in favour of the Respondent who is in breach of Exhibit “A” sought to be enforced against the

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Appellant.