Alhaji Isa Tafida & Anor V. Alhaji Yaro Garba (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment)

By a Writ of Summons dated 26th and 25th days of January, 2010 the date of filing which is unknown as there is no indication whatsoever on record to that effect and Statement of Claim dated 22nd February, 2010 date of filing also not stated; the Respondent as Plaintiff in the High Court of Justice of Taraba State, in the Jalingo Judicial Division Holden at Jalingo, before the Honourable Justice Nuhu S. Adi; sued the Appellants (then Defendants) and sought for the following Reliefs in paragraph 28 of the Statement of Claim thus:

“(a) The sum of three Million Naira (N3, 000,000.00) being balance from the sales transaction of the land in issue.

“(b) The sum of one Million Naira (N1, 000,000.00) as damages for breach of contract of sale.

“(c) Interest of 27% on the total sum of N3, 000,000.00 per annum from the date of Judgment up to execution.

“(d) Costs of filing and execution.”

The Defendants joined issues by filing their Statement of Defence dated 17th day of May, 2010 after which at the hearing the Plaintiff called two witnesses (the PW1 and PW11) who having testified, the Defendants sought leave of the Court to amend their Statement of Defence and they were duly obliged. See pages 25 – 32 of the Records. The Amended Statement of Defence dated 17th May, 2010 is as contained in pages 28 to 32 of the Records. Consequently, the Plaintiff brought a motion on Notice seeking the Court’s leave to also amend his Statement of Claim. The Amended Statement of Claim dated 18th day of October, 2010 can be seen at pages 36 to 40 of the Records.

After the respective amendments of the Parties pleadings, the Plaintiff testified as PW3 and a total of three documentary evidence were tendered and marked Exhibits 1, 2, and 3 respectively. The Defendant also testified as DW3 and called two other witness as DWI and DWII and tendered documents admitted and marked Exhibits 4, 5A, 5B and 5C, respectively. At the close of their respective cases, the learned Counsel for the parties addressed the Court and on the 20th June, 2011 following the Reply of the learned Counsel to the Defendant on points of law, the case was adjourned to 26th July, 2011 for Judgment.

In a well considered Judgment delivered on the 26th July, 2011, the learned trial Judge resolved the only issue which fell for determination in favour of the Plaintiff and held at page 85 lines 6 to 14 thus:

“I entirely agree with the submissions of the Plaintiff’s Counsel that Exhibit 7 creotes a valid contract between the Plaintiff and the 1st Defendant. The lone issue is answered in the positive, that is, the 1st transaction was valid at the time the vendor (plaintiff) entered into purported sales with the 2nd Defendant. I only need to add that even after signing Exhibit 4 the agreement in Exhibit 7 remains valid and enforceable against the parties therein except where there are disclosed vitiating factors such as fraud or misrepresentation, which is not the case here.

In the light of the above the Plaintiff’s claim succeeds as follows:..”

Dissatisfied with the judgment of the learned trial Judge, the Defendants who shall hereinafter be referred to as Appellants on the 17th day of October, 2011 filed their Notice of Appeal with three Grounds dated 15th day of October, 2011 through their Counsel A. Umar Esq. Upon transmission of the Records hereto, Briefs of Argument were exchanged by learned Counsel representing the respective parties. In the Appellant’s Brief dated the 4th day of June, 2012 and filed on the 7th day of June, 2012, A. Umar Esq. of Counsel who settled the same formulated three issues for determination hereunder reproduced as follows:-

“1. Whether the 1st Sale between the 1st Appellant (1st (Defendant) was valid at the time the Respondent (plaintiff) entered into the 2nd transaction with the 2nd Appellant (2nd Defendant)?

2. Whether Exhibit 4 can be varied, added to or altered by extrinsic evidence?
3. Whether the parties are bound by the Deed of Assignment (Exhibit 4) voluntarily signed by them?”

On the part of the Respondent, M. I. Tyonongo Esq. who settled his Brief of Argument dated and filed on the 2nd day of July, 2012, adopted the three issues formulated by the learned Counsel for the Appellants in their Brief. The brief facts of the case as can be gleaned from the pleadings of the parties at the lower Court are that the Plaintiff (now Respondent) in the lower Court claimed that the entered into an Agreement with the 1st Appellant for the 1st Appellant to purchase his 50 units of one bedroom flats at the Federal Low Costs Housing Estate lying and situate at Bali, Bali Local Government Area of Taraba State. Precisely the property lies along Bali to Takum Road at the right hand side adjacent the Primary Education Board office, Bali