Ganiyu Badaru V. Somolu Community Bank (Nigeria) Limited (2002)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

The respondent was the plaintiff, before the Lagos State High Court in suit No. ID/2460/94, wherein it claimed against the appellant as the defendant, the specific performance of the contract of sale of the landed property, situate at and known as 9, Alarape Street, Bariga, Lagos, and damages for its detention. The parties filed and exchanged pleadings. At the hearing the parties called one witness each. The respondent’s case was that, the appellant who was a customer of the respondent, was the owner of the premises described above. The respondent bought the house for the sum of N1 million. The appellant was first of all paid the sum of N400,000.00. The balance of N600,000.00 was credited into the appellant’s account, according to the respondent. It was the case of the appellant that, he was never paid this balance, nevertheless, the respondent resorted to preparing fraudulent statement of account, showing that the appellant’s account was credited with the sum of N600,000.00.

The learned trial Judge however, gave judgment in favour of the respondent for an order of specific performance.

Dissatisfied, the appellant filed notice of appeal, which was subsequently amended to contain 5 grounds and therefrom, formulated the following issues for determination:

“2.01 Whether the learned trial Judge had jurisdiction to deliver judgment in favour of the plaintiff/respondent, in view of suppression of facts by the plaintiff/respondent?

2.02 Whether the plaintiff/respondent had discharged the burden of proof to be entitled to an order of specific performance of the contract of the sale of the landed property at No.9, Alarape Street, Apelehia, Bariga, Lagos to the plaintiff/respondent?

2.03 Whether the judgment of the learned trial Judge is vitiated by perverse findings of fact?

2.04 Whether the pleadings of the plaintiff/respondent are at variance with the oral and affidavit evidence in respect of the case?”

The respondent on its part formulated only a single issue for the determination of this court thus:

“Whether the plaintiff/respondent discharged the burden of proof required to obtain an order of specific performance of the contract for the sale of the property in dispute in this case.”

I must observe that after careful study of the appellants four issues and the respondent’s sole issue, it is my considered opinion that the 1st and 2nd issues formulated by the appellant, are similar to that of the respondent’s sole issue. Again, the 3rd and 4th issues as distilled are conually the same. It is in view of this observation, that I would consider the 1st and 2nd issues of the appellant and that of the respondent together. Thereafter, the remaining 3rd and 4th issues of the appellant will be considered together.

Firstly, in considering the 1st, 2nd issues formulated by the appellant and the single issue of the respondent, the simple and straightforward question that can arise is, whether the respondent has discharged the burden of proof required of it, to obtain an order of specific performance of the contract for the sale of the property No.9 Alarape Street, Bariga, Lagos, which is in dispute.

In his submission, the learned Counsel for the appellant, has submitted that the learned trial Judge erred in law, in delivering judgment in favour of the respondent, for an order of specific performance of contract of sale of the land, possession thereof and costs of N1,000, when the learned trial Judge had no jurisdiction to do so on ground that, there was suppression of the fact that only N400,000.00 was paid to the appellant, leaving a balance of N600,000.00 unpaid.

It is argued that since the respondent paid the first instalment of N400,000.00 by a bank draft, it should have similarly paid the balance of N600,000.00 by bank draft, instead of allegedly crediting the appellant’s savings account with the said N600,000.00 as evidenced in exhibit ‘P1’ tendered at the trial court. Reliance was also placed on affidavit evidence of the appellant as given in the affidavit deposed to by him on 3/9/99, in an application brought in this court for an order for leave to amend notice of appeal and to adduce fresh or further evidence in order to tender a certified true copy of the ruling of lower court on 19/1/96 in charge No. A/391/94 in order to establish that the respondent did not pay the sum of N600,000 to the appellant. The following authorities were relied on Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 718; Weston v. Henshaw (1950) Ch. D 510 at 519; Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 at 538; Chief Ukwu v. Chief Bunge (1997) 8 NWLR (Pt.518) 527at 544.