Suleiman Jaiyeola Moshood V. Uche Akubi (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against the Summary Judgment/Ruling of the Kaduna State High Court delivered on the 11th July, 2008 by Luka D. Aba J.

The Respondent was the Plaintiff at the lower Court while the Appellant was the 2nd Defendant. The facts of the case leading to this appeal are as follows:

The Respondent commenced action against one Philemon Abu Akuki (Trading under the name S.O.J Ventures).

Instead of serving the said Philemon Abu Akuki (Trading under the name S.O.J Ventures) with the Court processes, same were served on Alhaji Suleiman Jaiyeola Moshood who was not a party. On the application of the said Alhaji Suleiman Jaiyeola Moshood by a motion on notice dated 14th March 2008, the service of processes on him was set aside by the trial Court on 11th April, 2008.

By a motion Ex-parte dated 17/04/2008, the Respondent as Plaintiff moved the trial Court to join the Appellant as a party and the application was granted on 25/04/2008. The Respondent by writ of summons dated 2nd May, 2008 brought under Order 11 Rules 1 to 3 (Summary Judgment) claims jointly and severally against the defendants, the following relief(s);

1. “The sum of N704,600 being balance of purchase price of Dangote/Kano flours and arrears of credit.
2. The sum of N50,000 solicitor’s fees paid by the plaintiff as shown on exhibit TC.3
3. The sum of N50,000 General damages and cost of this action.
4. The sum of N100,000 profit that will accrue to the plaintiff monthly, if he had put the money N1,085,000.00 into business from October 2007 to the date of judgment and
5. 10% interest on the judgment sum from date of judgment until the entire judgment sum is fully liquidated.”

The Appellant having being joined as the 2nd defendant accordingly filed his defence accompanied with a counter claim.

The trial Court in its considered Summary Judgment held as follows;

“….Consequently I hold that the plaintiff’s case is well made and proved under this procedure as the fundamental facts have been well established by him. Judgment is accordingly entered in favour of the plaintiff and against the defendants jointly and severally as follows;

1. N704,600 being balance of purchase price of Dangote/Kano flours and arrears of credit.
2. The amount paid by the plaintiff as solicitor’s legal fees per exhibit TC.3 is N10,000. This N10,000 is granted plaintiff as payment for legal fees.
3. General damages are assessed at N30,000 inclusive of the cost of this action.
4. The N100,000 profit claims fails as there is no evidence backing it and particularly more so that the plaintiff is not a banker, financial institution or registered money lender and the parties did not expressly include this head of claim in their contract, in the event of breach.
5. 10% interest is granted to the plaintiff on the judgment sum per annum from today, till the whole sum is finally liquidated, since it is statutorily provided for.”

Dissatisfied with the said Summary Judgment of the lower Court, the Appellant filed a notice of appeal dated 8th August, 2008 containing four grounds. Parties in accordance with the rules of this Court filed their respective briefs of argument.

The Appellant distilled three issues for determination from four grounds of appeal as follows;

1. Whether the learned trial judge was right in determining the Respondent’s case under Summary Judgment Procedure of the Kaduna State High (Civil Procedure) Rules 2007 regard being had to the nature of the claims, the evidence proffered by the Respondent and the defence put up by the Appellant.
2. Whether the Respondent as Plaintiff proved that the Appellant was the proprietor of S.O.J Ventures and thus principal to Mr. Philemon Abu Akuki and thus liable for his action as found by the Hon. Learned Trial Judge.
3. Whether the Learned trial Judge was right to have dismissed the counter-claim filed by the Appellant against the Respondent “in limine” without calling on the parties to state their case by way of defence.

The Respondent in his brief distilled three issues for the determination of this appeal as follows;

1. Whether the Respondent’s case at the Court below was not capable of determination under Summary Judgment procedure (Order 11 Kaduna State High Civil Procedure Rules 2007) considering the Respondent’s claims, his evidence and nature of the defence/counter-claim put up by the Appellant?
2. Whether from the admitted facts in the pleadings, documentary exhibits thereto, affidavit evidence in this case the Appellant is not a disclosed principal to the 1st defendant?
3. Whether counter claim raised or incorporated in the defence to the main suit brought under Summary Judgment procedure (Order 11) will automatically be transferred to general cause list for hearing irrespective of the merit or lack of merit of the counter claim?

The issues as couched by the Appellant have captured the essence of the dispute between the parties. Same will be adopted for the determination of this appeal.

ISSUE ONE