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  • 2003-11-10
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Nwankwo vs. Abazie

HUMPREY NWANKWO

V

ANTHONY ABAZIE

COURT OF APPEAL

( JOS DIVISION )

OLUDADE O. OBADINA, JCA ( Presided and Read the Lead Judgment )

ISA ABUBAKAR MANGAJI, JCA

IFEYINWA CECILIA NZEAKO, JCA

CA/J/296/98

MONDAY, 8TH JULY, 2002

APPEAL - Record of proceedings - Correctness of - Duty of party challenging

COURT - Competence of court to adjudicate on a case - Conditions precedent thereto

EVIDENCE - Presumption of regularity of official acts - When appropriate

INTERPRETATION OF STATUTE - Statute with many sections Principle guiding court when interpreting

JURISDICTION - Competence of court to adjudicate on a case Conditions precedent to

PLEADINGS - Amendment of pleading - Failure to amend process after obtaining leave to do so - Effect of

PRACTICE AND PROCEDURE - Amendment of pleading - Failure to amend process after obtaining leave to do so - Effect of

PRACTICE AND PROCEDURE - Extension of time - Application to file process out of time without specific prayer for extension of

time within which to file same - Effect of

PRACTICE AND PROCEDURE - Record of proceedings - Correctness of - Duty of party challenging

PUBLIC OFFICER - Official acts - When appropriate to presume regularity of

STATUTE - Interpretation of a statute with many sections - Principle guiding court

Issues

1.              Whether the appellant/defendant can be held bound to have known of an event (payment) of (N30,330.61) which never actually took place.

2.              Whether the trial court’s wrong stance on the competency of the last and final amended defence used before her, has not occasioned a denial of fair hearing.

3.              Whether the existence of a contract is sustainable in the light of the materials placed before the court by each of both sides.

4.              Whether the trial court did not descend into the arena of conflict in order to favour one side against the other.

5.              Whether the trial court’s order of specific performance was not made against a stranger both to the ‘contract’ and to the court’s proceedings.

Facts:

The appellant herein as the owner of the property at No. 12, Ali Kazaure Street, Jos, mortgaged the property to First Bank Plc. to secure loan facilities. In another separate transaction, the appellant also took an overdraft facility from African Continental Bank Plc. (A.C.B). Due to his failure to pay the overdraft, the African Continental Bank Plc. sued him, obtained judgment against him and attached both his movable and immovable properties in liquidation of the judgment sum.

Meanwhile, the appellant, inspite of the two encumbrances hanging on the property sold the property at A12, Kazaure Street, Jos to the respondent herein. The appellant informed the respondent about the loan he took from First Bank Plc., Jos, and urged the respondent to pay the sum of N85,000 outstanding sum he ought to pay to First Bank Plc. The respondent eventually paid the said sum and an interest of N30,330.61 accrued thereon. Thereafter, the appellant’s lawyer prepared a sale agreement executed by the parties in respect of the said properties.

However, when the appellant realised the implication of their agreement, he purportedly cancelled the sale and offered the respondent’s purchase price but the respondent refused to collect the money. The respondent therefore instituted an action for the enforcement of the sale agreement.

At the conclusion of trial, the trial Judge, T. D. Naron gave judgment in favour of the plaintiff/respondent. The defendant/appellant being dissatisfied brought this appeal.