Alhaji Azeez Layi Olagunju V. Alhaji Yusuf Adeniran (2001)

LawGlobal-Hub Lead Judgment Report

MURITALA AREMU OKUNOLA, J.C.A.

This is an appeal against the judgment of the High Court of Kwara State holden at Ilorin presided over by Ibiwoye J. The judgment of the court was delivered on 23rd of September, 1998 in favour of the plaintiff as per his amended writ of summons and statement of claim.

The facts of this case briefly put were as follows:
The plaintiff’s claim as per his amended writ of summons and statement of claim at page 99 of the record were:
(a) A declaration that the deed of transfer relating to the house bought by the plaintiff from the defendant and lying and being at opposite Vehicle Inspection Office (behind Federal Housing Estates) Kulende, Ilorin, Kwara State dated 11th of April, 1991 between the plaintiff and defendant is valid with legal effect.
(b) An order of specific performance against the defendant for a contracted agreement of sale on the building situate, lying and being at opposite Vehicle Inspection Office (behind Federal Housing Estate) Kulende, Ilorin.
(c) A perpetual injunction restraining the defendant and or his agents, assigns, or privies from entering or living in the house and from collecting rents on the house and to refund the money so collected from April, 1991 on the house lying and being at opposite Vehicle Inspection Office (behind Federal Housing Estate) Kulende, Ilorin.

The plaintiff/respondent’s writ of summons was filed on 13/7/92. The defendant/appellant, too, filed a separate writ of summons on 7/8/92 claiming three different reliefs.

Each of the writ was supported by pleadings. After a while, parties through their counsel resolved to continue the present suit at hand (i.e. KWS/156/92). While the defendant/appellant claimed 3 reliefs, the plaintiff/respondent claimed the 1st and 3rd reliefs in his writ. It is upon these 2 relief claims in the writ of summons and the statement of claim that the plaintiff/respondent commenced the hearing of his action by giving evidence in support of some averments in his pleadings and he equally called other four witnesses who testified in his favour. The defendant also testified in person and called two other witnesses. The plaintiff/respondent in the course of his testimony before the trial court finally urged the court to grant his claim. (See page 146 of the record of proceedings). As at the time of asking the trial court to grant his claims, the much talked about deed of transfer in the respondent’s amended statement of claim had been rejected while the other claim remaining, was a consequential order which was dependent on the survival of the first claim in the writ and amended statement of claim. It was after the defence started calling evidence that the plaintiff/respondent brought an application for further amendment of his amended statement of claim so as to bring in a new relief and also amend the said consequential reliefs, as couched. This move was opposed and at the end, the trial Judge, by his ruling upheld the amendment. The defence equally filed a further amended statement of defence.

However, the case of the parties at the trial briefly was that sometimes on the 11th day of April, 1991 he bought an uncompleted storey building situate, lying and being at opposite Vehicle Inspection Office (behind Federal Housing Estate) Kulende, Ilorin from the defendant/appellant for a total sum of N70,000.00 commission inclusive. A deed of transfer was prepared and executed in respect thereof by the parties, though the said deed of transfer was rejected at the trial. Oral and other documentary evidence were led at the trial showing that the sale of the building had been concluded before the appellant turned round, after the 4th month that he was no more interested in the sale of the building based on Exhibits 6 and 6a. This was after the respondent had commenced development on the building and developed the house up to the roofing level of the 1st storey.

At the end of trial, the learned trial Judge validated the deed of transfer dated 11/4/91 earlier on rejected in evidence and made his award in favour of the plaintiff/respondent thereby granting the plaintiff/respondent an equitable remedy of specific performance and the injunctive remedy as claimed.

Dissatisfied with this judgment of the trial lower court, the defendant/ appellant (hereinafter referred to as the appellant) appealed to this court on six grounds.

From the six grounds of appeal, the appellant has formulated the following four issues for determination in this appeal, viz:

1. Whether the court can make a declaratory order validating a deed of transfer dated 11th April, 1991 which it had earlier on rejected in evidence and so marked.
2. Whether or not the grant to the plaintiff/respondent by the trial Judge of an equitable remedy or relief of specific performance and the 3rd relief as claimed in his pleading and upon available evidence, is well founded in law.
3. Whether or not the learned trial Judge properly evaluated the evidence at his disposal in this case so much so that he can be adjudged to have reached correct finding or decision in law.
4. Whether the leave granted to the plaintiff to amend his writ of summons and amended statement of claim was proper in law.

Learned counsel to the respondent also formulated three issues for determination in this appeal which for the language and style used boil down to the four issues formulated by the appellant. These are:-

1. Whether despite the rejection of deed of transfer, the trial court can still validate sale of the building agreement between the parties based on oral and other documentary evidence presented before the court. Ground 1.
2. Issue No.2 formulated by the appellant’s counsel in his brief is hereby adopted, Grounds 2 & 3.
3. Whether having regard to the amendment granted the plaintiff amending his writ and statement of claim as at the time the trial court granted the amendment the grant to the respondent of a specific performance is wrong in law. Grounds 4, 5 and 6.

On 10/5/01, when this appeal came before us on the application of the respondent/Applicant’s counsel, leave was granted to the parties to argue both the motion and the appeal together. Consequent upon this learned counsel to both parties argued both the motion and the appeal. I shall be here concerned with the argument in respect of the application for purposes of this ruling.

Learned counsel to the respondent/applicant MR. O. J. Adeseko referred to the motion which was filed on 30/3/01. He said it was brought pursuant to Order 30 rule 20(ii), S.16 of the Court of Appeal Act and Section 6(6)(a) of the 1999 Constitution for the prayers for further amendment of statement of claim contained in the motion paper. He contended that the motion is supported by an affidavit of 4 paragraphs. He relied on all the paragraphs of the affidavit along with the attached Exhibits. Learned counsel to the respondent/applicant submitted that court can grant the amendment. We are not over reaching our case in any way.