⦿ CASE SUMMARY OF:
Alhaji Baba Berende v. Alhaja Sahara Abdulkadir Usman & Anor (2004) – CA
Alhaji Baba Berende
1. Alhaja Sahara Abdulkadir Usman
2. Alhaji Abubakar Ibrahim
(2005) 14 NWLR (Pt.944) 1;
Court of Appeal – Illorin Judicial Division
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Salman Jawanda, Esq.
* FOR THE RESPONDENT
– A. O. Mohammed, Esq.
The facts of the case are that the appellant had a business relationship with the late Alhaji Abdulkadir Usman, who is said to have been the husband of the 1st respondent, by virtue of which the appellant bought cows on credit from the late businessman who later died on 10/3/98 in a road motor accident.
At the time of his death, the appellant is said to be owing the sum of N565,300.00 for the purchase of 38 cows from the said Alhaji Usman. In acknowledgment of the debt, the appellant wrote exhibit “B” and followed same up by paying the sum of N40,000.00 part payment of the debt. Later on, the appellant failed to pay the balance of the debt as a result of which the family of the late Alhaji Usman by exhibit A, authorized the 1st and 2nd respondents who are described therein as the widow and business partner of the late Alhaji Usman to, inter alia, institute an action to recover the balance of the debt, which was then N525,300.00.
The respondents carried out the instructions by instituting the action resulting in this appeal under the undefended list. Those who issued exhibit A, the letter of authority, are the father, brothers and 1st son of the late Alhaji Usman.
In reaction to the action of the respondents, the appellant filed a notice of intention to defend the action together with an affidavit disclosing a defence, in which he contended that:
(1) That the respondents have no locus standi to maintain the action, and
(2) That the amount claimed had been manipulated to his detriment.
The issues which the learned trial court had to determine are therefore: (a) Whether the respondents have locus standi to institute the action?, and (b) Whether the affidavit of defence discloses any defence to the action?.
The court resolved the issues against the appellant, hence the appeal.
1. Whether the respondents have the locus standi to bring this action and whether the suit is competent?
2. Whether the averments contained in affidavit in support of notice of intention to defend disclose a defence on the merit?
3. Whether having regard to the nature of transaction, the respondents are entitled to interest on the N525,300.00 debts?
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 was resolved in favour of the respondent.
i. TO THE 1ST RESPONDENT: The people who are best qualified to tell the court the wife or wives of the deceased are the signatories to exhibit “A” and they had spoken through the document. The appellant who alleges the contrary has not mentioned the name or address of any of the alleged wives of the deceased known to him, if any existed, neither has he questioned the authenticity of the claim of the signatories to the said exhibit A as to their true identity as rightly found by the lower court. I am of the view that in view of the facts of this case, it was not necessary for the respondents to prove the nature of the marriage between 1st respondent and the deceased because the issue does not arise. I will go further to state that as a widow, she is a beneficiary to the estate of the deceased together with the signatories to exhibit “A” and others they represent. She therefore has interest in the debt as found by the lower court.
ii. TO THE 2ND RESPONDENT: That being the case, I hold the view that the finding by the lower court to the effect that 2nd respondent is an attorney of the members of the family as per exhibit A not having been challenged on appeal, it remains finding and uncontroverted and this court has no alternative than to confirm same.
2. ISSUE 2 was resolved in favour of the respondent.
i. He is in effect saying that the misrepresentation alleged constituted his defence on the merit of the case. However, that cannot be a complete defence, if a defence under the circumstances, because it does not dispute the fact that the appellant is indebted to the deceased. The alleged misrepresentation relates to the quantum of debt owed but unfortunately, the appellant provided no clue as to the true state of affairs regarding the actual amount owed. He has also not disputed the number of cows allegedly bought by him which the respondents put at 38 cows. This clearly means that he accepts that he bought 38 cows on credit from the deceased. If he disputes the total amount being claimed as the cost for the said 38 cows, it is his duty to depose to how much each cow costs and how much he had paid by way of installments and what was now due and payable. This would have demonstrated in practical terms whether the figure claimed by the respondents is in fact fabricated, as alleged or based on misrepresentation.
ii. Without these facts, the question of misrepresentation becomes an after thought particularly in view of the clear and unambiguous admission in exhibits B and C, which admission is conceded by the appellant.
iii. Therefore, in view of the facts, it is clear that paragraphs 5 and 6 of the appellant’s affidavit constitute no defence on the merit. To that extent, I am of the view that the lower court is correct in holding that the appellant has not, on the facts produced, shown that he has any defence on the merit to the action and proceeded to enter judgment against the appellant under the undefended list. That there being no defence made out, there was nothing to be transferred from the undefended list to the general cause list to be dealt with according to law. I therefore resolve the issue against the appellant.
3. ISSUE 4 was resolved in favour of the respondent.
i. From the above definitions, it is clear that goods or chattels in our context include animate and inanimate personal property which will, of necessity include horse, goats, sheep, cows, cars, tables, patents etc. By section 64 of Cap. 143 supra, a buyer or seller of goods can recover interest. The issue however is whether there is evidence in support of the award of interest. I have carefully gone through the affidavit in support of the undefended list action and I agree with the submission of learned counsel for the respondents that the claim for interest is based on statute that is the Sale of Goods Law, section 64 thereof and as deposed to in paragraph 17 of the supporting affidavit. That being the case, the claim for interest is statutory and therefore recoverable. I therefore resolve the issue against the appellant.
Section 2(1) of the Sale of Goods Law, Cap. 143, Laws of Kwara State;
⦿ SOME PROVISIONS
“Order 23 of the High Court (Civil Procedure) Rules, 1989 provides thus:
1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief, there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the undefended list’ and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case.
2. There shall be delivered by the plaintiff to the registrar upon the issue of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the registrar shall annex one such copy to each copy of the writ of summons for service.
3(1). If the party served with the writ of summons and affidavit delivers to the registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.
3(2). Where leave to defend is given under this rule, the action shall be removed from the undefended list and placed on the ordinary cause list; and the court may order pleadings or proceed to hearing without further pleadings.”
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
It must always be kept in mind that this is a Court of Appeal which has jurisdiction primarily to review, by way of rehearing the decision or decisions of the lower court. It follows therefore that appeals coming before us are based on grounds of appeal attacking the ratio in the decision of the lower court. However, in certain circumstances, an issue not raised in the lower court and decided therein may be raised for the first time in the Court of Appeal but upon leave first had and obtained. This is trite law. – Onnoghen, JCA. Berende v. Usman
It is trite law that oral evidence is inadmissible either to add to or subtract from the contents of a document in this case exhibits B and C. – Onnoghen, JCA. Berende v. Usman
Locus standi is basically the legal capacity to institute proceedings in a court of law or tribunal or the right of a party to appear and be heard on the question for determination before the court or tribunal. – Onnoghen, JCA. Berende v. Usman
I have to note that the days of technical justice are over and the courts now strive to achieve substantial justice between the parties. – Onnoghen, JCA. Berende v. Usman
It is not disputed that the appellant had a long standing business relationship with the deceased from whom the appellant bought cows on credit. This clearly shows that both the appellant and the deceased traded on cows. Also not disputed is the fact that the appellant bought a total of 38 cows from the deceased on credit. In short, the appellant is indebted to the deceased and did admit the indebtedness vide exhibit “B” attached to the affidavit in support of the claim. What is being contended is whether in view of the facts of this case, the respondents are entitled to an award of interest on the debt arising from the credit sale of 38 cows to the appellant. – Onnoghen, JCA. Berende v. Usman
It is trite law that the lower court has the power or jurisdiction to award interest in appropriate cases before it. The interest can be pre-action and post action. By pre-action interest, I mean interest on a sum claimed which predates the institution of the action while by post action interest, I mean interest awarded by the court on judgment debt or after judgment sum had been awarded. Whereas, the jurisdiction of the court to award pre-action interest is rooted in common law or statute, that of post action or judgment is grounded in the rules of court. Now for the court to have the jurisdiction to award pre-action interest, the facts of the claim for interest must be pleaded by the plaintiff and evidence produced at the trial in support of the claim for award of such interest. – Onnoghen, JCA. Berende v. Usman