Abdu Manya V. Alhaji Iliyasu Idris (2000)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A. 

This is an appeal against the decision of Tani Yusuf Hassan, J., of the Kano State High Court of Justice, sitting in Kano, in suit No. K/402/94 delivered on the 5th December, 1996, in an action brought by the Respondent, as the Plaintiff against the Appellant, as Defendant, claiming five declaratory reliefs and damages for trespass. Pleadings were filed, exchanged and settled at statements of claim and defence. The plaintiff testified on behalf of himself and called two other witnesses. On the other hand, the defendant testified and called four other persons as witnesses for defence. Learned Counsel for the respective parties addressed the Court. The learned trial Judge, in a reserved and considered judgment, found that the consideration for the contract of sale of land between the parties had failed and granted the Respondent possession of the property in dispute in addition to an award of N20,000.00 damages for trespass.

Dissatisfied with the judgment, the Appellant appealed to this Court on 7 grounds of appeal.

In accordance with practice and procedure of this Court, briefs of argument were filed and exchanged. The Appellant’s brief was filed out of time on 17th February, 1998 and was regularised by extending the time to file and deeming the same as properly filed and served on 24th June, 1998. The undated Respondent’s brief was filed within time on 30th July, 1998. The Appellant, in his brief of argument, formulated 3 issues while the Respondent framed 4 issues in his brief of argument.

The issues framed for determination in the Appellant’s brief of argument read as follows:-

Is the trial Court not under a duty to consider and determine all the issues placed before it for determination and whether the failure of the trial court to decide on all the crucial issues that arise in the pleadings of the parties and raised before it for determination did not amount to a denial of fair hearing or fair trial?

2. Whether there has been a failure of consideration in respect of the contract for the sale and purchase of the mud house?
3. Whether from all the circumstances of this case and taking the pleadings and evidence on it as a whole; the trial Court is right in declaring the Appellant, a trespasser, and awarding the sum of N20,000.00 against him as damages for trespass?”

The Respondent identified four issues as calling for determination in this appeal. The 4 issues submitted in the Respondent’s brief for determination are:-

“1. Whether totality of evidence can be said not to have been considered when the finding of the Court is expressly based on the testimony of the plaintiff’s witnesses as supported by defence witnesses.

2. Whether an appellant given adequate and unhindered indulgence to state his case in due compliance with the procedure can complain of being deprived fair hearing/trial.
3. Whether a party to a contract of sale of land has a right to rescind a contract on account of breach of payment of a consideration at a time agreed for such payment and whether a consideration can be said to have failed on account of the failure of consideration, when the contract is finally rescinded.
4. Whether a party to a contract who fails to honour his promise to pay a consideration at a stipulated time can be said to be a trespasser on account of his occupation of the landed property which is the subject matter of sale”.

The issues calling for determination, in my respectful opinion, in the main, are the right of the vendor when the purchaser defaults in paying the balance of the purchase price as well as the right of the owner against a person who came in possession in course of a Tenancy Agreement. These two issues are adumbrated in the Appellant’s issues 1 and 3 as well as issues 3 and 4 of the Respondent’s brief of argument. It is apt, at this stage, if I may state, albeit succinctly, the facts of this case. The Appellant was a tenant of the Respondent in respect of a premises held by the Appellant as a deemed holder of statutory right of occupancy at Unguwa Uku, Kano. During the subsistence of the tenancy, in or about 1990, the Respondent offered for sale and the Appellant agreed to buy the property for N16,000.00. The appellant made a part payment of N14,000 and promised to pay the balance of N2,000.00 within 10 days. At the expiration of the 10 days, the Appellant failed to make good his undertaking and demanded for extension of time which was granted. The default persisted, inspite of several demands, for a period of 36 months. The Appellant eventually asked for refund of his N14,000.00 which he refused to collect when the respondent produced the money.

The Respondent sought the intervention of the wardbead whose intervention did not achieve amicable settlement. The Respondent had to resort to litigation by suing at Waje Area Court, Kano for an order formally setting aside the transaction and ordering the Appellant to accept his deposit or part payment of N14,000.00. The Court ordered the deposit of the money during the pendency of the case. The case was decided against the Appellant who was thereby aggrieved by the decision of the Court and appealed against it to the Upper Area Court, Kano but not after he had taken his money placed on deposit in the Court.

The Upper Area Court heard, allowed the appeal and ordered a retrial which was stalled by an order of prohibition restraining the Court from rehearing the case, on the ground of exceeding its jurisdiction, by entertaining a matter pertaining to title to land situate and lying in an urban area, a matter that is exclusively reserved to the High Court.

Consequently, the Respondent brought the action resulting in the instant appeal before the High Court claiming the restoration of his title on the ground of failure of consideration or rescission of the sale transaction on account of Appellant’s failure to make good his undertaking to pay the remaining purchase price within 10 days. The Appellant, on the contrary, contended that the contract entered into by the parties was complete and absolute and was no longer open to the party to exercise right to rescind the agreement. In other words, Respondent’s remedy lies in suing for specific performance only and not for rescission of the sale.

The Appellant, in arguing his issue 2, arising from grounds 3, 4, 5 and 6 of the grounds of appeal, submitted that the conclusion reached by the learned trial Judge, that there had been failure of consideration is erroneous and cannot be supported. Learned Counsel contended that, it is not the case of either party that there was a novation of the contract entered into in 1990 to warrant a fresh consideration that can be said to have failed. He further contended that, it is trite that the Court will neither make contract for the parties nor inquire into the adequacy of consideration and placed reliance upon the case Biyo v. Aku (1996) 1 NWLR (Pt. 422) 1,38 and African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (pt.210) 391, 414.