CaseLaw
Orah V. Nyam (1992) CLR 1(d) (CA)
Brief
Facts
The appellant brought a claim on the undefended list claiming the sum of N9,000.00 against the respondent being the price of a sub-contract done for the respondent for the fencing of the State Secretariat Jos. The matter was later transferred to the general cause list. The appellant filed a Statement of Claim and the respondent filed a Statement of Defence which included a Counter –Claim and the respondent filed a Statement of Defence which included a Counter claim by the respondent against the appellant for the sum of N6,000. The appellant did not file a reply to the counter claim.
The evidence led by the appellant was that a firm of the respondent was awarded a contract by the Plateau State Government in 1980 to fence the Plateau Secretariat, Jos. The appellant, the respondent, and one other person agreed to execute the contract jointly and to share the profit. The appellant was to provide part of the fund for the execution of the project. The parties were agreed on the facts up to this point. Where they disagreed was on how the agreement among them to execute the contract jointly was implemented.
The appellant’s version was that he provided the fund that he was bound to provide from the beginning of the execution of the contract up to the time that it was completed. For that reason, he was entitled to receive one third of the profit of N45,000 which was N15,000. The respondent gave him three cheques for the said N15,000 but two of them, one for N4,000 and the other for N5,000, bounced. The respondent had refused and/or neglected to pay the appellant the sum of N9, 000.
The respondent’s version was that the appellant stopped proving the necessary fund when only fifteen or twenty per cent of the contract has been executed. In fact, the appellant demanded and was paid the money, which he made available for the execution of the project up to that stage. The two cheques for the total sum of N9, 000 which, according to the appellant bounced, did not bounce. They were cheques which the respondent gave to the appellant, on the appellant'’ request, so that the appellant might use them to convince his creditors that he had money and it was never intended by both parties (appellant and respondent) that the appellant should present them to the bank for payment. It was to prevent the appellant from cashing them that the respondent stopped their payment. N6, 000 claimed by the respondent in the counter claim was a friendly loan by the respondent to the appellant, which the appellant had failed to pay.
The learned trial Judge, after giving consideration to the evidence led by parties and the submissions of their learned counsel, gave judgment for appellant for the sum of N9,000 and also gave judgment for the respondent for sum of N6,000 and that, in any case, the result of the failure of the appellant to a reply to the counter claim was that judgment should be entered for the respondent.
Dissatisfied with the judgment in favour of the respondent in relation to the counter claim, the appellant has lodged an appeal to this court. The respondents was dissatisfied with the judgment in favour of the appellant for the sum of N9,000 and he has lodged a cross appeal to this court.