Ladan Liman Tirwun V. Musa Ibrahim Jakkada (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment)

Before the Bauchi High Court of Justice, presided by Justice Sulaiman Darazo, chief Judge, (hereinafter referred to as the lower court), the respondent who was the plaintiff sued the appellant who was the defendant claiming as follows:

a). A DECLARATION that the Plaintiff is entitled to the assignment of property comprised and covered by C of O No.BA/5887.

b). AN ORDER of specific performance to effect the assignment.

c). A DECLARATION that the repudiation of the contract by the Defendant by refusing to accept the balance of purchase price after he collected the C of O from the Bank without the knowledge of Plaintiff is wrongful and void.

d.) A DECLARATION that any purported sale, transfer assignment including the Defendant’s occupation of the property is equally null and void.

e). A PERPETUAL INJUNCTION restraining the Defendant, his agents, servant, privies or otherwise from selling, leasing, assigning or dealing or alienating the property to any other person.

f). The sum of N100,000.00 for every day of default from 1/7/92 when full payment was made to defendant.

9). AN ALTERNATIVELY the sum of N1,000,000.00 Special damages for breach of contract.

h). The Plaintiff claims the sum of N64,000.00 Cost of rent N500,000.00 escalation cost refund with interest of 20% p.a.

After filing and exchange of pleadings the suit went to trial whereby the parties called witnesses and tendered exhibits to prove their respective case. Learned counsel to the parties addressed the court. After reviewing the pleadings and the evidence adduced thereon, the learned trial judge entered his judgment in favour the respondent against the appellant. Dissatisfied with the judgment, the appellant by a notice of appeal dated 11th and filed on 20th July, 2007, challenged the said judgment on three (3) grounds of appeal.

The background facts of the case could be summarized thus. Sometime in 1992 the appellant decided to sell his house situate in Unguwar Dawaki Bauchi town of Bauchi State. The respondent agreed to buy the house. They agreed at the sum of N64,000.00 (Sixty Four Thousand Naira) as the price of the house per Exhibit ‘A’. The respondent deposited the sum of N20, 000.00 (Twenty Thousand Naira) as initial payment. The balance of the N44,000.00 (Forty Four Thousand Naira) to be paid within two (2) weeks which was later extended by one (1) week. For various reasons the respondent was unable to pay the balance of the N64,000.00 (sixty Four Thousand Naira). When the appellant could not get the balance of the N64,000.00 (sixty Four Thousand Naira) he revoked the sale agreement. The respondent was not satisfied with the revocation of the sale of the house; he then instituted an action before the lower court seeking for an order of specific performance of the agreement for the sale of the house to him. The lower court, after the hearing of the case’ entered judgment in favour of the respondent against the appellant.

After filing his appeal before the lower court on the 20th of July, 2007, the appellant filed his brief of argument before this court on the 17th of April, 2012. The respondent filed his brief of argument on the 25th of July, 2012. A Reply brief was filed by the appellant on the 15th of March, 2013. The appeal came up for hearing before this court on the l8th of November, 2013, whereat the learned counsels to the parties, adopted their respective briefs of argument.

Abejeme Esq., who settled the appellant’s brief of argument identified the brief, wherein two (2) issues have been distilled from the 2 grounds of appeal. Learned counsel did urge the court to allow the appeal, set aside the judgment of the lower court. Jibrin Esq., identified the respondent’s brief and intimated the court that four (4) issues, were distilled from the grounds of appeal. Learned counsel applied to the court for an order striking out Issues (iii) and (iv) of the respondent’s brief of argument. Learned counsel to the appellant did not object. The court accordingly granted the order sought and struck out Issues (iii) and (iv) of the respondent’s brief of argument. The court has been urged to dismiss the appeal and affirm the judgment of the lower court.