Rukayya Auwalu Vs Bashir Muhalli & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, JCA: (Delivering the leading judgment)

This appeal emanated from the decision of Hon. Justice Dije Abdu Aboki of the Kano State High Court, in suit No K/167/2014, delivered on the 17th June, 2015, whereof the learned trial Judge dismissed the subject matter of the dispute but awarded some damages to the plaintiff (now appellant).

At the trial court, appellant (as plaintiff) had claimed as follows:

1. A declaration that the sale agreement between herself (plaintiff) and the 2nd defendant concluded on 22/11/2013 in respect of the house (in dispute) occupied by the plaintiff and her parents which shares a common boundary as follows is valid subsisting and binding on the defendants.
2. A declaration that upon the conclusion of the sales agreement on 22/1/2013 in respect of the house, subject matter of this suit, occupied by the plaintiff and her parents belongs to the plaintiff.
3. An order directing the 1st and 2nd defendants to collect the balance amount of N2,600,000 (two million, six hundred thousand naira), being balance in the sale agreement of 22/11/2013, in respect of the house, subject matter of this suit, situate at Janbulo Layin transformer, Kabuga, Kano, from the plaintiff after having paid N900,000.00 (nine hundred thousand naira) on 22/1/2013 and 14/1/2014.
4. An order of perpetual injunction restraining the defendants whether by themselves, their agents, servants or privies from interfering with their possession and enjoyments of the house, subject matter of this suit, laying and situate at Janbulolayin (sic) transformer Kabuga Kano occupied by the plaintiff and her parents.
5. An order directing the 1st and 2nd defendants to jointly and severally pay the plaintiff N1,000,000 (one million naira) damages for breach of contract.

In response to the action, the respondents filed a joint defense asking the court to dismiss the claim for non-disclosure of cause of action.

After hearing the case and considering the evidence and addresses of counsel, the trial court held:

A breach of contract is where one of the parties has acted contrary to the terms of the contract or by wrongful repudiation of the contract. The party in breach will incur liability for ending the contract, without just cause.

Now although the failure by 1stdefendants to conclude the sale of the house in question was due to its disposal by the 2nd defendant, I am of the considered view that the situation could have been avoided (sic). If the 1st and 2nd defendants acted properly as they were obligated to.

The 2nd defendant, after asking the 1st defendant to source for a buyer, ought to have informed the latter, immediately he concluded the sale with DW3. Also, the 1st defendant himself ought to have first checked with the 2nd defendant, before collecting the plaintiff’s deposit, especially as he testified that he waited for the plaintiff and PW4 for over one year before they made deposit.

In the circumstances of this case, the plaintiff is entitled to damages for the breach of the contract to sell the house in question to her after collecting deposit.

The plaintiff is seeking for one million naira as damages, considering that the object awarding damages is to put the party injured as far as money can in the same position as if the contract has been performed. I am of the considered opinion that the sum of one million naira in this case is somewhat excessive.

It is in evidence that the plaintiffs deposits were made in November, 2013 and January 2014. The quantum of damages should be assessed from the said period. In assessing damages that will flow naturally from the withholding of the plaintiffs deposits from the given period of time, I award the sum of N300,000.00 as damages in plaintiffs favour against the defendants, jointly and severally.

Judgment is hereby entered, partly, in favour of the plaintiff in respect of the claim for damages for breach of contract and hereby dismissed the rest of the plaintiffs claims. (See pages 157 – 159 of records of appeal).

That is the decision the appellant appealed against as per the notice and grounds of appeal on pages 160 – 163 of the records filed on 17/6/2015.

Appellant filed her brief of argument on 4/12/2015 and donated a lone issue for the determination of the appeal, namely: