Pastor J. Akinlolu Akinduro V. Alhaji Idris Akaya (2007)

LAWGLOBAL HUB Lead Judgment Report

ADEREMI, J.S.C

This appeal is against the majority decision of the Court of Appeal Kaduna Division (Coram Umaru Abdullahi, Presiding Justice) (as he then was) and A.O. Ige JCA (of blessed memory) who wrote the leading judgment delivered on the 24th February 1998 allowing the appeal against the judgment of the High Court of Kwara State, Ilorin Division. The minority judgment dismissing the appeal against the same judgment of the said High Court was written by Ogebe, JCA. Before the trial Court, the present appellant who as the plaintiff at that court had by paragraph 28 of his statement of claim dated 17th June 1991 claimed against the respondent/cross-appellant who was the defendant in that Court the following reliefs:-

“(1) A declaration that the land at Tanke, Ilorin sold to the plaintiff by the defendant is at all times his property.

(2) An order of perpetual injunction restraining the defendant from preventing the plaintiff or any of his agents and workmen from enjoying quiet possession of the premises.

(3) The sum of N40,000.00 (forty thousand naira) being special and general damages for loss sustained by the plaintiff, as a result of the defendant’s obstruction of plaintiff on his land.”

Pleadings filed and exchanged between the parties are the statement of claim dated 17th June 1991 and statement of defence dated 18th February 1992. Both sides called evidence in proof of the averments in their respective pleadings. At the conclusion of their evidence and sequel to taking the formal addresses of their counsel, the learned trial Judge, in a reserved judgment delivered on the 30th of June 1993, allowed the claims of the plaintiff in part and dismissed it in part; he held in his judgment, inter alia: –

“From the evidence adduced, I have no hesitation in holding that the land at Tanke Area, Ilorin was sold to the plaintiff as per exhibits 1 and 2, belongs to the plaintiff – Pastor Akinduro and it was at all times his property. Because I have held as above, I hereby grant the order of perpetual injunction against the defendant who is restrained by himself, agents and workmen (sic) from enjoying quiet possession of the premises.

It is clear from the evidence before me that the defendant caused the suspension of the building project of the plaintiff by causing the plaintiff’s men to be harassed from the building site and also suing the plaintiff to be taken to the Area Court which restrained the plaintiff from further development of the building. The plaintiff who was dissatisfied did not appeal against the decision of the Area Court until a fresh action was instituted in this court in 1991…

In the light of this, can the plaintiff claim the sum of N40,000.00 as special and general damages against the defendant after failing to minimise his own loss I am of the firm view that this court should not allow his claim of N40,000.00 which has arisen as a result of his own failure to act timeously…

The claim of N40,000.00 as special and general damages is hereby refused and it is accordingly dismissed.”

Being dissatisfied with the said judgment, the defendant (Alhaji Idris Alaya) before that court and who is the present respondent/cross-appellant aggrieved by the portion of the judgment to the Court of Appeal (Kaduna Division) which granted an order of perpetual injunction against him, cross-appealed to this court. As I have said, by the majority decision of that court and the court below, the appeal was allowed and a pronouncement was made that the claim for declaration of title failed thus setting aside the judgment of the court of trial with a proviso that the plaintiff/respondent before the court below, now appellant before us, should not be ejected until his equitable interest was satisfied. In the majority judgment, it was held inter alia:-

“That notwithstanding, the appellant is duty bound to handover a plot of land to the respondent at Tanke, Ilorin because he received payment for the plot. By the act of payment of money to the appellant coupled with the later actions respondent has taken on the land, respondent has a right to an equitable interest which is enforceable by specific performance. It is my candid view that exhibit 1 has not passed title to the respondent but has given rise to an equitable interest which is enforceable against the appellant. In order to be able to enforce his right to this equitable interest, the appellant should not do any act to prejudice the interest of the respondent until he has fulfilled his own part of the bargain by putting the respondent rightfully on a plot of land at Tanke.

The claim for declaration of title has failed hence Issue 2 is also resolved in favour of the appellant with a proviso that he should not eject the respondent from the land until his equitable interest is satisfied.”

It is against the majority judgment that the appellant before the court below has filed an appeal via notice of appeal dated 30th April 1998 incorporating thereto three grounds of appeal. Suffice it to say that this appeal is against that portion of the judgment that dismissed his claim for title. In the minority judgment handed down by Ogebe, JCA which judgment favoured the respondent (Pastor J.A. Akinduro) before that court, the learned justice, in reaching his decision, held inter alia:-