Alh. Abdullahi Jalo V. Ali Muhammad (2005)

LawGlobal-Hub Lead Judgment Report

ALOMA MARIAM MUKHTAR, J.C.A.

A suit (No. ADSY/7/94) filed by the Plaintiff who is the Respondent in this appeal was struck out on 17/2/94. The Plaintiff applied that the case be relisted on the court’s cause list, and his prayer was granted on 28/3/95. The Plaintiffs case against the Defendant as per his statement of claim is – that he bought a house situated at Demasawo ‘A’ Ward Jimeta-Yola at N16,000.00 from the Defendant. The agreement was that the Plaintiff will make a part payment of N12,500, after which on payment of the balance of N3,500.00 the documents of ownership i.e. the complete documents of title will be handed to him by the Defendant. However, the Defendant reneged Ilorin the agreement and refused to surrender the house and also refused to collect the balance of N3,500 in spite of the fact that the Plaintiff had paid the initial N12,500 agreed upon. The Plaintiff claimed against the Defendant the following:

(i) Specific performance of the contract of sale of the house as contained in the contract of Sale Agreement.

(ii) An order of the Honourable Court on the Defendant to – collect his remaining balance of N3,500 and hand-over the house to the Plaintiff and also hand-over to the Plaintiff all the documents of ownership to the Plaintiff by signing all the documents of transfer of title.

(iii) An order of the Honourable Court on the Defendant to surrender and account for all necessary and consequential rents gained or received on the House already sold to the Plaintiff from 18/1/91 until the date of judgment.

(iv) The cost of this litigation.

In his own pleading the Defendant admitted the sale of the house in dispute to the Plaintiff but stated a different condition of sales which was that the balance of W3, 500 will be paid to the Defendant on or about 20th January, 1991 i.e. 2 days after the sale agreement on 18th January, 1991. On failure to pay the said balance after two months, the Defendant informed the Plaintiff that the sale was no more and he should surrender the original sale agreement and collect his deposit. Eleven months thereafter Plaintiff brought the said balance, which was rejected by the Defendant who in turn gave the deposit to the Plaintiff and who also refused to collect. A suit was instituted by the Plaintiff before the area court for possession of the house and the court ordered the Plaintiff to pay the sum of N12,300 cost of renovation of the house but he refused. He appealed to the Upper Area Court, Yola. The Defendant refunded the N12,500 to the Plaintiff, and sold the house in dispute to somebody else.

Parties adduced evidence which the learned trial judge evaluated, and at the end of the day found the Plaintiffs claim proved and gave judgment in his favour. Aggrieved by the decision the Defendant appealed to this court on four grounds of appeal which are as follows, (but without their particulars):

1. The learned trial judge erred in law when he admitted in evidence and relied on an alleged Sale Agreement between the Appellant and Respondent in giving judgment in favour of the Respondent
2. The learned trial Judge erred in law in giving judgment in favour of the Respondent when it was apparent that the Respondent failed to pay the balance of the purchase price within a reasonable time, an action which entitled the Appellant to rescind the contract sale.
3. The learned trial judge erred in law when he ignored the defence of the Appellant that the property had been resold and when he went on to grant specific performance in favour of the Respondent.
4. The decision is against the weight of evidence.

The Appellant’s counsel filed a brief of argument on 18/10/2000, which was served all the Respondent on 30/10/2000. The Respondent refused/neglected to file a brief of argument in response to the Appellant’s brief, hence on 19/11/2001, the Appellant’s counsel filed a motion on notice that the appeal be heard on the Appellant’s brief of argument alone. The Respondent was served with the motion on 21/12/2001, and on 28/2/2002 this court granted the order sought. As the appeal was fixed for hearing on 23/11/04, the Respondent was served with a hearing notice, but the Respondent as usual made no effort to take any step i.e. it was as though he was not interested in the appeal, and put up a lackdaiscal attitude. The court thus had no alternative than to hear the appeal on the day fixed, and learned counsel for the appellant adopted his brief of argument. Three issues for determination were formulated in the Appellant’s brief of argument, and they are namely:

(i) Whether the trial judge was right in admitting and acting on Exhibit A in giving judgment in favour of the Respondent?.

(ii) Whether it was right for the trial judge to enter judgment in favour of the Respondent when there was evidence that he did not tender the balance of the purchase price until after eleven months which made the Appellant to rescind the contract?.

(i) Whether the trial judge was right in ignoring the defence put forward by the Appellant against the Plaintiffs claim for specific performance i.e. that he had rescinded the earlier agreement and had resold the house in question to a third party?.

I will commence the treatment of the issues with issue (i) supra. Learned counsel for the Appellant in proffering argument there under submitted that in as much as Exhibit “AI” confers title to the property on the Respondent it qualifies as an instrument that ought to be registered under the Land Registration Law of Northern Nigeria Cap 58 applicable to Adamawa State. He further submitted that what is of importance is not the name given to the document by the parties but the effect of the document, and placed reliance on the case of Oredola Okeya Trading Company Nigeria Limited v. Attorney General of Kwara State & an or. (1992) 9 SCNJ 13. this case is slightly distinguishable from the instant case in that in that case the exhibit that was the bone of contention was held to be inadmissible not only because it was not registered but because consent was not obtained as per the requirement of the Land Tenure Law of Northern Nigeria.

Although the learned counsel has made no reference to any specific section of the Land Registration Law of Northern Nigerian supra, I find the following provisions useful and will evoke them for the purpose of this discussion.