Alhaji Hussaini Mohammed Mustapha V. Usman Abubakar & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

By the Notice of Appeal filed by the Appellant on the 27th February, 2007, which was predicated on seven grounds of appeal, the Appellant seeks firstly; for an order setting aside the judgment of the High Court of Kaduna State delivered on the 30th January, 2007 in Suit No, KDH/KAD/289/2000 between the parties, and, secondly, for an order granting the claims of the Appellant and lastly, for an order dismissing the counter- claim of the 2nd Respondent.

The facts leading to this appeal as distinctly set out on the record are, that on the 24th February, 1998, the Appellant and the 1st Respondent entered into an agreement for the sale of the 1st Respondent’s house at No. A.K 12 Faki Road, Tudun Wada, Kaduna to the Appellant at the agreed purchase price of N600,000. The Appellant made a part payment of the sum of N350,000 to the 1st Respondent on the aforementioned date, and, then undertook to pay the balance of N250,000 on the 16th March, 1998. There was an alleged breach of the said contract along the line, which then, necessitated the said house being resold by the 1st Respondent to the 2nd Respondent on the 19th March, 1998. Being irked by what he perceived as the 1st Respondent’s renege on the contract, the Appellant, immediately initiated a civil proceeding against the Respondents. Then, by his Amended Statement of Claim filed on the 26th May, 2003, at the trial Court, the Appellant, claimed thus:

“WHEREOF the Plaintiff claims from the defendants jointly and/or severally as follows:

(a). An order of specific performance compelling the 1st Defendant to receive the sum of N250,000 (Two hundred and fifty thousand Naira) from the Plaintiff being the balance of the purchase price of the house situate and know as No. AK 12 Faki Road, Tudun Wada, Kaduna, as contained in the agreement dated 24/2/98.

(b). An order setting aside as null and void the purported sale of No. 12 A.K Faki Road, Tudun Wada, Kaduna by the first Defendant to the second Defendant after the agreement dated 24/2/98 between the Plaintiff and the first Defendant.

(c). An order directing the second Defendant to vacate the property situate at and known as No. AK. 12 Faki Road, Tudun Wada, Kaduna, forthwith.

(d). An order directing the first Defendant to put the Plaintiff into possession of the property aforesaid.

(e). Cost of this action”

ALTERNATIVELY

The Plaintiff in the alternative, claims against the first Defendant as follows:

1. The refund of the sum of N350,000.00 (Three hundred and fifty thousand Naira) being money

had and received as deposit for the purchase of house situate at and known as AK. 12 Faki Road,

Tudun Wada, Kaduna.

2. The sum of N500.000.00 (Five hundred thousand Naira) being the general damages for breach

of contract and losses sustained by the Plaintiff as a result of the first Defendant’s refusal to honour the contract terms.