The summary of the claim in this matter brought by the plaintiff (now appellant) against the defendant (now respondent) at the lower court i.e. the Jos High Court is as set forth in the last paragraph of the Statement of Claim dated 5/10/89 as follows:

"Wherefore the plaintiff claims:

Responding to the Statement of Claim, the defendant filed his defence and therein counter-claimed for the sum of N50,000.00 particularised thus: Loss of earnings – N24,050.00 and general damages – N25,950.00. The subject-matter was a land transaction that concerned a parcel of land situate at Bauchi Bye Pass Jarawa Jos. No defence was filed by the plaintiff to the counter-claim. After several adjournments – on 6/10/93 the matter was at the instance of the appellant and his counsel failed to appear in court. The trial court without more went ahead to dismiss the plaintiffs claim. It however, adjourned the counter-claim to 15/2/94 for the respondent to prove his case. No fresh Hearing Notices were served on the plaintiff and his counsel for the counter-claim and on 11/4/94 entered judgement in his favour for a total sum of N39,050.00 made up thus: Loss of earnings – N25,050.00 plus general damages – N15,000.00. By notice of motion, the plaintiff sought for an order to set aside the judgement. The trial court on 26/7/95 in a ruling refused the prayer. The plaintiff appealed against both the judgement and the ruling to this court. The concluding portion of the judgement of 11/4/94 reads thus:

"The plaintiff having abandoned his claim the defendant's claim in his counter-claim remains uncontroverted and I am bound to enter judgement in his favour. Therefore, the defendant's counter-claim for N24,050.00 loss of earning succeeds. See Ogbonna v. A.-G., Imo State (1992) 1 NWLR (Pt.220) page 647 at 698. The defendant claims N25,950 – general damages for breach of contract. The defendant having been awarded damages for his actual loss for breach of contract he cannot recover an amount equal or more than what his actual loss is. To my mind this will be excessive.

Of significance in this matter is that the plaintiff (now appellant) and his counsel did not take any further part in the proceedings on the counter-claim, that is to say, after the matter was adjourned to 29/11/93 when his claim was formally dismissed. However, by notice of motion filed on 29/6/95 the appellant sought the leave of the trial court to set aside the judgement together with the writ of attachment levied on the appellant's property. On 26/7/95 the trial court delivered its ruling on the application refusing the reliefs sought therein.

The appellant appealed against both the judgement and the ruling to the Court of Appeal.