J. O. Adedeji V. Alhaji Ado Dankula & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A.

This appeal emanates from the decision of High Court of Justice, Kaduna (the lower court for short) in suit No. KDH/KAD/77/91 delivered on the 2nd day of March 2001. At the lower court, the appellant as plaintiff took a Writ of Summon against Ibrahim Folorunsho (now deceased) and the first and 2nd respondents then as 1st and 2nd defendants claiming the under mentioned reliefs:-

a. A declaration that the defendants have no right of Sale of plaintiff’s house known and situated at No.A1. 92 Kurmin Mashi Kaduna covered by certificate of occupancy No KDA/A/000128 dated 13/9/1985 which is within Kaduna Urban Land.

b. A declaration that purported sale of the plaintiff’s house by the 1st defendant to the 3rd defendant is illegal, null and void and a consequential order that the purported sale be set aside.

c. A perpetual injunction restraining the defendants, their agents, servants, privies etc from selling, trespassing on the plaintiff’s said house.

d. An order of account of the position of the plaintiffs indebtedness to the defendants and a consequential order for install mental payment of same.

In the course of the proceedings, the initial suit was struck out by the lower court on 20th November 1997 due to non-diligent prosecution of same by the plaintiff. Thereafter, the 1st defendant died. The suit was however relisted sometimes in 1999 with the three respondents herein as the defendants who also filed a counter claim as reproduced hereunder:-

(i) An order of specific performance to compel the plaintiff to complete the sale of the landed property situate, lying and being at No A1. 92 Kurmin Mashi, Road Kaduna covered by Certificate of Occupancy No KDA/A/000128 and registered as No 128 at page 24 in Volume I in the Sole Administrator’s office Kaduna Local Government by yielding up possession of the same to the 2nd Defendant upon the determination of this suit.

(ii) An order that the Plaintiff should account for rents being collected by him from the tenants from 1991 after the sale of the said property to the 2nd defendant until determination of this suit.

(iii) 10% interest on the rents collected so far from the tenants from 1991 after the sale of the said house to the 2nd defendant and thereafter 10% on the judgment sum until final liquidation.

(iv) A declaration that the 2nd defendant is the lawful and equitable owner of the property situate and being at No. A1. 92 Kurmin Mashi Road, Kaduna covered by the Certificate of Occupancy KDH/A/000128, In the alterative.

(v) A refund of the purchase price of N60,000.00 (Sixty thousand Naira) plus interest at the rate of 21 % per annum from 1991 until determination of this suit and thereafter at the rate of 10% per annum until final liquidation.

(vi) N500,000.00 (Five Hundred Thousand Naira Only) as damages for breach of the said Agreement During the trial the Plaintiff testified on his own behalf and also called two witnesses and tendered three exhibits marked Exhibits A, Band C. The defendants on the other hand called two witnesses and tendered some documents in evidence which were marked exhibits D, D1 to D4, E, F and G. The learned trial judge Kurada J in his considered Judgment found in favour of the defendant wherein he held thus;-

“The Plaintiff is hereby ordered to complete the sale of the landed property situate lying and being at No At. 92 Kurmin Mashi Road, Kaduna covered by the Certificate of Occupancy No KDH/A/000128 and registered as No 128 at page 24 in Volume 1 in the Sole Administrator’s office Kaduna Local Government by yielding up possessing of the same to the 2nd defendant.