Isaac Gaji & Ors. V. Emmanuel D. Paye (2003)

LAWGLOBAL HUB Lead Judgment Report

O. EDOZIE, J.S.C.

This is an appeal against the judgment of the Court of Appeal Abuja Judicial Division delivered on 16th day of April, 1996, wherein it set aside the decision of the trial High Court of the Federal Capital Territory delivered on 24th of September, 1993 and entered judgment in favour of the plaintiff. The bone of contention between the parties is the sale of a house consisting of 23 rooms (error for 22) variously known as “Good Hope Hotel” or Mayor Hotel” situate and lying at Sabon Gari Gwagwalada in the Federal Capital Territory Abuja, hereinafter referred to as the property in dispute.

In the trial High Court aforesaid, the respondent on records as plaintiff sued the 1st appellant Isaac Gaji as the sole defendant over the property in dispute, which the latter sold to the former. Before the action could proceed, Ladi Gaji and Ayuba Gaji, wife and half brother respectively of the 1st defendant applied to be joined and were accordingly joined as the 2nd and 3rd defendants to defend the action for and on behalf of Gaji family. The parties filed and exchanged pleadings. The plaintiff filed an amended statement of claim, the 1st defendant a separate statement of defence while the 2nd and 3rd defendants filed a joint statement of defence. As reflected in paragraph 12 of the plaintiff’s amended statement of claim, the plaintiff claimed jointly and severally against the three defendants the following reliefs:-

“(a) An order of specific performance of the contract of sale of the Hotel.

(b) An order for an account by the 1st defendant of the rent that accrued/or accruing from the date of sale till the determination of this suit.

(c) An order of possession of the Hotel to the plaintiff as bonafide purchaser,

(d) The refund of all rents collected from the date of sale of the Hotel to the plaintiff as money had and received.

IN THE ALTERNATIVE:

(e) Refund of N11,000 (Eleven Thousand Naira) being the purchase price to the 1st defendant between September and November, 1987.

(f) 20% profit which the plaintiff would have made from the said N11,000 from the rent collected on the Hotel between November, 1987 till the determination of the suit.

(g) N15,000 (Fifteen Thousand Naira) as special damages for breach of contract.

(h) N5,000.00 (Five Thousand Naira) as general damages.”

At the trial, the plaintiff on the one hand and the 2nd and 3rd defendants on the other gave evidence and called witnesses but the 1st defendant led no evidence nor did he participate at the trial. The plaintiff’s case was that in September, 1987 he was introduced by one Bulus Damagai PW1 to the 1st defendant who wanted to sell his house known as ‘Good Hope Hotel’ or ‘Mayor Hotel’ consisting of 23 (22) rooms. The 1st defendant had represented that the house belonged to him. They negotiated and agreed on N11,000 (eleven thousand naira) as the selling price. The plaintiff PW4 thereupon made a part payment of N6,000 (Six Thousand Naira) and the 1st defendant issued him a receipt (exhibit P). Subsequently, in November, 1987 in the presence of Bulus Garba (PW2), the plaintiff paid the balance of N5,000 (Five Thousand Naira) and was issued with another receipt which was not admitted in evidence for want of registration. It is the plaintiff’s case that despite the fact that he paid the agreed price, the 1st defendant has refused to transfer possession of the property in dispute to him. Explaining how the 1st defendant derived title to the plot of land on which the 22 roomed house was built, the plaintiff called Muhammadu Ninzoma PW3 who testified that it was one Zubairu Sariki the agent of Sarikin Gari Gwagwalada who on behalf of the Sariki allocated the plot to the 1st defendant alone and not jointly with anyone else.

The case for the 2nd and 3rd defendants was that the land on which the house of 22 rooms was built was allocated by Sariki Gwagwalada to the father of 1st and 3rd defendants and by implication it is the family land of Gaji. The 3rd defendant DW2 claimed that he moulded some blocks and engaged a mason to develop part of the land by erecting a building of 13 rooms on the land. Ladi Gaji, the 2nd defendant and the wife of the 1st defendant also developed part of the land by erecting a house of 9 rooms. They both alleged that they were unaware that the 1st defendant without the consent of the 3rd defendant the head of the family. Answering questions under cross-examination, the 3rd defendant (DW2) disclosed that he and the 1st defendant have a common mother but different fathers. To support their claim that they 2nd and 3rd defendants built the property in dispute, they called as witnesses Abdullahi Bamagi (DW4) the bricklayer who built the house, a carpenter Francis Akpan (DW5) who roofed the building and Okoro Sunday Vincent (DW6) said to be the oldest tenant in the property in dispute.