Mrs. Abosede Dauda V. Lagos Building Investment Co. Ltd & 3 Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment)

The appeal herein is against the decision of Candide-Johnson, J. of the Lagos State High Court, which was delivered on the 25th day of January, 2008.

The Appellant, who was the Plaintiff at the lower Court, claimed before that Court in her amended writ of summons and amended statement of claim both dated and filed on the 27th April, 2004 the following reliefs: –

“(a) An order of specific performance directing the Defendants, jointly and severally, to deliver to the Plaintiff, vacant possession of Flat SA, Block 22E at the Lekki Jubilee Housing Estate, Lagos State allocated to the plaintiff by the 2nd Defendant vide the 2nd Defendant’s letter bearing Ref. No. SR.666/DC/JHC/3 dated the 22nd day of November, 1996, within thirty days from the date of delivery of judgment in this suit failing which the Defendants shall jointly and severally, forthwith pay the sum of N3,000.000.00 to the Plaintiff.

(b) AS AN ALTERNATIVE to the relief sought in paragraph (a) above, an order directing the Defendants, jointly and severally to pay SPECIAL DAMAGES in the sum of N3,000,000.00 to the Plaintiff, being the value of the bungalow.

(c) An order directing the Defendants, jointly and severally, to pay the sum of N182,000.00 to the Plaintiff for loss of use of the bungalow.

(d) An Order directing the Defendants jointly and severally to pay the sum of N7,000,000.00 as

GENERAL DAMAGES to the Plaintiff for breach of contract.”

The 2nd, 3rd and 4th Respondents, who were Defendants at the lower Court in that order jointly had a front loaded Amended Statement of Defence dated and filed on the 8th of March, 2004. The first Respondent did not file a statement of defence. Issues were therefore joined and the case proceeded to trial. The Appellant called two witnesses to wit, Olusegun Fawora, the Appellant’s counsel that acted for her during the sale transactions and Dr. Ajayi Pasunola an Estate Surveyor and valuer. The defence called one witness in the person of Mrs. Temitope Adenike Akinbola, a lands officer attached to the 3rd Respondent. In addition, various documentary evidence were tendered and admitted. At the end of trial, parties were ordered to file written addresses, which were subsequently adopted by their respective counsel. In a reserved and considered judgment, the learned trial Judge held that the Respondents had successfully defeated the case of the Appellant who is not entitled to any of the four substantive reliefs claimed. The claims were therefore dismissed for lack of merit.

The Appellant is unhappy with the decision. Being aggrieved she has appealed to this Court. Her notice of appeal dated and filed on the 20th March, 2008 contains five grounds of appeal. Parties filed and exchanged briefs of argument. At page 2 paragraph 3.2 of the Appellant’s brief of argument, the following issues are formulated for the determination of the appeal: –

“i. Whether the lower Court was right in law to have held that the Appellant ought to have filed a reply deposition to ‘attack’ or ‘diminish’ the deposition filed by the DW 1 which was received in evidence during the trial.

ii. Whether issues were properly joined on the pleadings filed by both sides in the suit before the lower Court.

iii. Whether the testimony of the DW1 was controverted or contradicted during trial in the suit before the lower court.

iv. Whether the defence of frustration availed the 4th Respondent in the circumstances of the suit before the lower court.