Alhaji Babaiye Ali V. Alhaji Kassim Hussaini & Ors (2002)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, J.C.A 

In the High Court of Kano State of Nigeria, in the Kano Judicial Division the plaintiff took out a writ of summons claiming against the first and second defendants as follows:-

a. Specific performance of an oral agreement.

b. N100,000 as damages for breach of contract in lieu of or in addition to specific performance or in the alternative.

c. Declaration that the sale between the 1st defendant and 2nd defendant is invalid been contrary to the plaintiff’s right of pre-emption.

d. substituting the 2nd defendant with the plaintiff as the purchaser of the said premises.

Pleadings were settled and exchanged at amended statement of claim and joint statement of defence of the existing defendants. Plaintiff testified in support of his claim. Before the first defendant testified in support of the defence, the second defendant died and was substituted with one Alhaji Aminu Ya’u Dankunne by order of court dated 22nd January 1996. By the same order Alhaji Aminu Dawaki was joined as third defendant. He too filed his own statement of defence.

Thereafter first defendant testified and the defence was closed.

Both counsel addressed court in writing. The learned trial judge in a reserved and considered judgment refused all the reliefs sought by the plaintiff and dismissed his action.

Plaintiff was unhappy with the dismissal of his action, and being aggrieved, appealed to this Court on 6 grounds of appeal. In accordance with practice and procedure of this Court, briefs of argument were filed and exchanged at the appellant’s as well as respondents’ brief of argument. The appellant formulated three issues from the six grounds of appeal filed along with the notice of appeal.

The issues framed in the appellant’s brief read as follows:-

(a) Whether the learned trial judge properly appraised the evidence of the plaintiff/appellant and formulated proper question for determination – Grounds 1 and 2.

(b) Whether the learned trial judge can properly rely, make findings and/or holding on evidence of facts not pleaded – Grounds 3 and 4.

(c) Whether the Plaintiff/Appellant is entitled, having regard to the pleadings and evidence led at the trial, to an order of specific performance of the contract of sale and/or to any of his other claims – Grounds 5 and 6.”