Alhaji Rasaq Adisa Oyebanji V. Mrs Patience Adunni Fowowe (2007)

LawGlobal-Hub Lead Judgment Report

ALFRED P.E. AWALA, J.C.A.

The Plaintiff (now respondent) claims against the Defendant (now Appellant) at the High court of Justice of Oyo State of Nigeria Holden at Ibadan are as follows:-

“(1) A sum of N280,000.00(Two hundred and Eighty Thousand Naira) being money advanced to the defendant by the plaintiff upon consideration that has totally failed.

(2)The sum of N150,000.00 being special damages suffered by the plaintiff as a result of failure of consideration.

(3) 10% interest on the sum found payable to the plaintiff from the date of the judgment till the whole judgment debt is finally liquidated.

(4) Cost.”

The facts of this suit briefly put, is about the sale of land at Bodija Ibadan, originally Ogunmola family land. A large portion of the land was sold to the Defendant/Appellant and one Kolade Adegboyega jointly under native law and custom out of which the plot now in dispute was sold to the Plaintiff/Respondent in 1995 by the duo and she immediately took possession of the land by building a block fence round it and erected an iron gate. She paid the sum of N280,000.00 (Two hundred and eighty thousand Naira) being the price of the said land to the Appellant which consideration has failed as there was a third party claim.

There was another sales agreement between the Respondent and the Appellant over another piece of land at Olode village via Ibadan to which she made part payment of N30,000.00 (Thirty Thousand Naira) over which she was not disturbed.

The third party at the Bodija land is one Professor Esan who sued the Respondent and the Appellant to court claiming title over the said land in dispute. After taking the Appellant and Respondent to court over the said land in dispute the Professor demolished the fenced wall and gate built by Respondent at Bodija.

The Respondent ultimately sued the Appellant for the return of the purchase money she paid for the disputed Bodija land as above for failed consideration.

Pleadings were ordered and settled by both parties and hearing of the case by Sanda J, commenced on 13/6/01 and ended on 26/7/01. In his considered judgment, the learned trial judge decided in favour of the Plaintiff and against the Defendant.

Dissatisfied, the defendant filed a Notice of appeal dated 6/7/01 formulating two grounds of appeal. As the grounds are crucial in the determination of this appeal. I shall reproduce same together with their respective particulars to wit:-

GROUNDS OF APPEAL

1. The learned trial judge erred in law in awarding judgment in favour of the plaintiff when from the pleading and evidence tendered at the trial the plaintiff was unable to establish that the defendant’s title was defective.

PARTICULARS