Ogunmola V. Mari Mohammed Kida (2001)

LawGlobal-Hub Lead Judgment Report

MUKHTAR, J.C.A.

In the court below the plaintiff who is now the respondent in this appeal claimed the following reliefs in his statement of claim, which supersedes the writ. See Korobotei v. Obubo (1999) 9 NWLR (Pt.620) 655.

(a) An order of specific performance compelling the defendants jointly and severally to conclude the agreement assignment in respect of property situate and lying at No. 4A Ahmadu Close Damboa Road, GRA., Maiduguri between the plaintiff and the defendant by delivering of the title deeds and physical possession of the said property to the plaintiff.

Or in the alternative

An order for the repayment to the plaintiff the sum of N625,000.00 by the defendants being the sum collected by the defendants from the plaintiff as consideration for the assignment of the said property.

N50,000.00 general damages for breach of the said contract of assignment.

(b) The cost of this suit.

Briefly put, the case of the plaintiff is that the plaintiff on 24th of August, 1994 bought the above house from the 2nd defendant/appellant, who was introduced to him by the 3rd defendant, an estate valuer. The defendant paid the sum of N500,000.00 agreed upon, receipt of which 2nd defendant acknowledged, and undertook to release to the plaintiff the original title documents as soon as the 1st defendant would have collected it from the 2nd defendant/appellant who was resident in Ibadan. The title documents were not released to the plaintiff/1st respondent, instead the sum of N125,000.00 additional sum was collected from the plaintiff as deposit for the other twin bungalow. Up till the time the plaintiff instituted the action the title documents had not been released to him.

On 28/2/95, the plaintiff was given leave to:-

1. Issue and serve the 2nd respondent with writ of summons and any other court processes out of jurisdiction.
2. Serve the 2nd, 3rd and 4th respondents with the writ of summons and other court processes by means of substituted service by pasting same at No. 4A Ahmadu Bello Close G.R.A., Maiduguri being the last known place of abode of the 2nd, 3rd and 4th respondents.

The plaintiff filed a motion on notice for an order to enter judgment for the plaintiff/applicant in Suit No. M/391/94 in default of defence by the defendants/respondents as per paragraph 18 of the statement of claim of the plaintiff. Before the motion could be moved, Counsel for the 4th and 5th defendants filed a motion on notice for an order extending the time within which to enter conditional appearance, and to deem the proposed memorandum of appearance under protest as having been duly filed and served on the plaintiff.

The motion was moved and on 26/3/96, the learned trial Judge granted the application as follows:-

“Having regard to paragraphs 2 – 5 of the affidavit, I am of the view that the court should express its discretion and grant leave for the applicants to enter conditional appearance as prayed. Accordingly, I grant same. If the necessary’ filing fees have been paid same is deemed to have been filed and served.”

None of the respondents filed a statement of defence, even after the above order was obtained, hence the motion for judgment was moved on 12/12/96, and ruled upon on 24/12/96. In support of the motion are the following vital paragraphs of the affidavit.

3. That I was informed by Haruna Y. Mshelia of counsel in my Solicitors Firm whom I verily believe that the writ of summons together with my statement of claim has been served on the defendants/respondents on 7th July, 1995.
4. That I was further informed by the said Haruna Y. Mshelia whom I verily believe that the 1st and 5th defendants/respondents were served personally by the bailiff of this Honourable Court.
5. That I was also informed by the said Haruna Y. Mshelia whom I verily believe that the 2nd, 3rd and 4th defendants/respondents were served by substituted means pursuant to an order of this Honourable Court.
6. That it is now over 5 months, since when the writ of summons and statement of claim were served on the defendants/respondents.
7. That I was also informed by Haruna Y. Mshelia whom I verily believe that none of the defendants/respondents entered appearance to this suit until 26/3/96, when the 2nd and 5th defendants/respondents were given leave to enter conditional appearance.
8. That the 2nd and 5th defendants/respondents made the application for their conditional leave (sic) only when served with our motion for judgment filed on 18/9/95.
9. That since leave to enter conditional appearance was granted on the 26/3/96 they have not taken step to regularise their position in this suit.
10. That the 2nd and 5th defendants/respondents are out of time to enter defence to this suit.
11. That the plaintiff has been held to ransom by the defendants/respondents without any just cause.

The 1st defendant filed a counter-affidavit, which in essence alleged incompetence of the writ before the court. The learned trial Judge after considering the affidavits and submissions of counsel entered judgment in favour of the plaintiff as follows:-