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  • Jagal Pharma Ltd v. Hussaini
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  • 2014-08-18
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Jagal Pharma Ltd v. Hussaini

JAGAL PHARMA LTD

V

1. ALH. SALISU HUSSAINI

( A. K. A. SALISU MAI MAGGI )

2. DEPUTY SHERIFF, HIGH COURT OF JUSTICE, KADUNA

COURT OF APPEAL

( KADUNA DIVISION )

DALHATU ADAMU JCA ( Presided )

ABDU ABOKI JCA ( Read the Lead Judgment )

HABEEB ADEWALE OLUMUYIWA ABIRU JCA ( Dissented in part )

CA/K/129/2011

WEDNESDAY, 24 JULY 2013

ACTION - Cause of action - Meaning of - When accrued

APPEAL - Finding of fact not appealed against - Subsistence and bindingness of

APPEAL - Ground of appeal - Purport of - Where argumentative Impropriety of - Court of Appeal Rules, 2002, Order 3, rule 2 considered

APPEAL - Preliminary objection - Purport of - Propriety of filing against appeal and not ground of appeal

APPEAL - Preliminary objection not filed according to relevant rules Attitude of appellate court to

CONTRACT - Lien - Meaning of - Legal lien - What constitutes - How differs from general lien - Nature of - Where debt is statutebarred - Whether may be claimed

DEBT RECOVERY - Lien - Meaning of - Legal lien - What constitutes How differs from general lien - Nature of - Where debt is statutebarred - Whether may be claimed

LIMITATION OF ACTION - Right of party - Limitation law - Whether extinguishes

STATUTE - Court of Appeal Rules, 2002, Order 3, rule 3 - Ground of appeal - Purport of - Whether argumentative - Impropriety of WORDS AND PHRASES - Cause of action - Meaning of - When accrued

Issues:

  1. Whether the court below was right in upholding the 1st respondents’ claim to exercise a lien over the sum of N3,250,000.00 (three million, two hundred and fifty thousand naira) paid to him by the appellant pursuant to the judgment in suit No. KDH/KAD/560/99, which was set aside by the judgment of this court in appeal No. CA/K/239/00, and if the answer is in the affirmative, whether the 1st respondent’s action was not statue-barred.
  2. Whether the court below was right in dismissing the appellant’s counterclaim for refund of money paid by it to the 1st respondent pursuant to the judgment in suit No. KDH/KAD/ 560/99 , which was set aside for want of jurisdiction in appeal No. CA/K/239/00 and for the payment of the costs awarded by this court.

Facts:

The 1st respondent as plaintiff in the High Court of Kaduna State claimed that it paid the sum of N3,250,000.00 (three million, two hundred and fifty thousand naira) to the appellant for the supply of 500 cartons of Tetmosol soap but that the appellant failed to supply same. He therefore, commenced an action under the undefended list procedure, claiming refund of the money paid with interest. The trial court granted the claims sought and not satisfied, the appellant filed an appeal to the Court of Appeal. The appeal was allowed on grounds of want of jurisdiction in that, the respondent failed to apply and obtain leave of court to place his action under the undefended list. Consequent upon this, the appellant wrote a letter by its solicitors demanding a refund of the judgment debt paid to the 1st respondent and threatened to levy execution on his property in the event of failure to comply. Upon receipt of the letter, the 1st respondent filed another action in the trial court seeking declaratory and injunctive reliefs to the effect that the judgment of the Court of Appeal which set aside the trial court’s judgment was not executory and cannot be a basis for issuance of writ of attachment against the 1st respondent’s property, the 1st respondent has a right of lien to the judgment  debt as money had and received which consideration for failed and an order of injunction in perpetuity, restraining the appellant from taking any steps with a view to levying execution on the 1st respondent’s properties. The appellant counterclaimed claiming a refund of the money. The trial court granted the 1st respondent’s claims and dismissed the counterclaim. Not yet satisfied, the appellant filed an appeal contending that the trial court erred by holding that the 1st respondent had a right of lien over the judgment sum. The 1st respondent filed a preliminary objection to the appeal.