KWANTI MASING SANTI v. EKENE H. EZUGWU
(2019)LCN/13370(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 28th day of May, 2019
CA/YL/177/18
RATIO
JURISDICTION: IMPORTANCE
It is trite that the issue of jurisdiction is fundamental and a threshold issue that must be determined first before a Court would have the competence to adjudicate over any case on the merits, the issue could be raised at any stage of the proceedings, even at the Supreme Court, even if it was not raised or determined at the trial, intermediate or appellate Court. It need not be an attack on the aspect covered in the judgment. It could be freshly raised on appeal where the subject matter or the statute donating jurisdiction to the trial Court to adjudicate on the issues did not give the Court such jurisdictional power to so adjudicate on, or if any of the parties to the suit who is a necessary party was included or not included in the suit. This is why the issue of jurisdiction is often time raised as a fresh issue on appeal, with or without the leave of the appellate Court. See, OBIKOYA V. THE REGISTRAR OF COMPANIES AND OFFICIAL RECEIVER OF POOL HOUSE GROUP (NIGERIA) LTD. (1975) LPELR-2175 (SC) P.6, PARAS. A-B (1975) 4 SC 32); OLOBA V. AKEREJA (1988) LPELR-2583 (SC) PP.17-18; PARAS. F-D; (1988) 3 NWLR (PT.847) 508 and OKOROCHA V. UBA BANK & ORS. (2018) LPELR-45 122 (SC) PP.15-16, PARAS. E-D.PER CHIDI NWAOMA UWA, J.C.A.
NON-JOINDER: THIS CANNOT BE A BASIS FOR OUSTING THE JURISDICTION OF A COMPETENT COURT
It is settled law that non-joinder of a party cannot be the basis for ousting the jurisdiction of a competent Court as rightly argued by the learned counsel to the Respondent. On the other hand where a necessary party has not been joined as a plaintiff or defendant, the Court may determine the matter in controversy as regards the right and interest of the parties before it. The Court will not dismiss or strike out a suit merely because a party who ought to have been joined was left out. It is the plaintiff?s claim that determines whether a person is the proper defendant to a suit.
The Supreme Court on whether non-joinder can defeat an action, in GREEN V. GREEN (1987) LPELR-1338 (SC) his lordship Oputa, JSC held thus:
No cause or matter shall be defeated by reason of the mis-joinder or non-joinder of any party, and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter. In other words where there has been a non-joinder either by failure of the parties or an intervener to apply for such joinder or failure of the Court to join suo motu; this non-joinder will not be taken as a ground for defeating the action. The above rule is thus designed to save rather than destroy, to cure rather than to kill the action or suit. Failure to join a party will thus under this Order (R.S.C. Order 15 R.6) not be fatal to the proceeding and the Court may determine the issues or questions so far as those issues or questions relate to and affect the rights and interests of the parties actually before the Court.PER CHIDI NWAOMA UWA, J.C.A.
CONTRACT: BREACH OF CONTRACT: WHETHER DAMAGES CAN SUFFICIENTLY COMPENSATE A PARTY FOR BREACH OF CONTRACT
Damages cannot therefore adequately compensate a Respondent for breach of contract for the sale of his interest in the particular piece of land where he has been carrying on his business, the available remedy for him is an order of specific performance as rightly ordered by the learned trial judge. See, UNIVERSAL VULCANIZING (NIGERIA) LIMITED V. IJESHA UNITED TRADING AND TRANSPORT CO. LTD & ORS. (1992) LPELR-3415 (SC), where his lordship Kutigi, JSC (as he then was defined an order of specific performance as follows:
A decree issued by the Court which constrains a contracting party to do that which he has promised to do. It is a remedy for breach of contract provided by equity to meet those cases where the common law remedy of damages is inadequate (See, BESWICK V. BESWICK (1968) A.C.58 H.L.).Thus where a vendor or lessor of land refuses to carry out his contract, an order of specific performance may be granted requiring him to execute the necessary conveyance or lease since one piece of land is not necessarily the same as another and damages may therefore not be an adequate remedy
See, also IBEKWE V. NWOSU (2011) LPELR-1391 (SC) PP.10-11, PARAS. D-A; (2011) 4 SC (PT.11) P.125; (2011) 9 NWLR (PT.125) P.1 and ACHONU V. OKUWOBI (2017) LPELR-42102 (SC) P.31, PARAS. B-C.PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
KWANTI MASING SANTI Appellant(s)
AND
EKENE H. EZUGWU Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The High Court of Taraba State, sitting at Jalingo presided over by Nuhu S. Adi, J. in Suit No: TRSJ/130/2017 in its judgment delivered on 23rd October, 2018 granted the plaintiff?s relief for a decree of specific performance arising from a contract for sale of land.
At the trial Court, the Respondent herein as plaintiff claimed against the Appellant herein as Defendant for the following reliefs:
a. An order for specific performance against the defendant?s family to honour their agreement with the plaintiff and collect their balance of N900,000.00 and handover the piece of land measuring 15 ft by 23 ft with a shop built on the said land located at Mile Six Market Jalingo Taraba State to the plaintiff.
b. An order of this Honourable Court restraining their Defendants, their privies, agents, servants or any person acting on their behalf from further trespassing into the land in issue.
c. An order awarding general damages to the tune of N1,000,000.00 (One Million Naira Only) against the Defendant.
d. An order awarding the sum of Five Hundred
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Thousand Naira Only (N500,000.00) as cost of litigation (see pages 5-6 of the record).
At the trial, the Respondent as plaintiff testified as the PW1 and tendered Exhibit 1 while the Appellant as defendant testified as the DW1 and tendered Exhibit 2. At the close of the trial, the lower Court in resolution of the lone issue whether the plaintiff is entitled to the order of specific performance gave judgment in favour of the plaintiff.
Aggrieved by the said judgment, the Appellant appealed to this Court and raised the issue of jurisdiction. Two issues were distilled for the determination of the Appeal thus:
1. Whether the judgment of the trial Court affecting the interest of a person not joint as a party in the suit is a nullity and liable to be set aside?
(Distilled from Ground 1 of the Grounds of Appeal).
2. Whether having regard to the pleadings and evidence on record, the judgment of the trial Court granting an order of specific performance is perverse
(Distilled from Grounds 2, 3 and 4 of the Grounds of Appeal).
The Respondent on his part also distilled two issues
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for the determination of the appeal thus:
1. Whether the non-joinder of a person who was not privy to the contract for the sale of land (Exhibit 1) ousted the jurisdiction of the trial Court.
2. Whether having regard to the totality of the evidence led by the parties the judgment of the trial Court can be justified and same did not occasion a miscarriage of Justice.
In arguing the appeal, the learned counsel to the appellant, Martin Milkman Esq. adopted and relied on his brief of argument filed on 27/12/2018 and his reply brief filed on 11/2/2019 as his argument in this appeal in urging us to allow the appeal, set aside the judgment of the trial Court and dismiss the claim of the Respondent as endorsed in his statement of claim. In arguing his first issue, it was submitted that the sale agreement between the Appellant and Dr. Jerry Philip Zorto was tendered and admitted in evidence without any objection and tendered as Exhibit 2. It was submitted that from the pleadings of the Respondent, particularly paragraphs 12, 13, 14 and 15 the Respondents grievances cannot be determined without joining Dr. Philip Zorto
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as a necessary party. It was submitted that there was evidence adduced at the trial Court from both parties that title in the property in question had been transferred to a third party before the commencement of the suit. It was argued that the trial Court ought not to have given judgment that affected the interest of a third without being joined as a party in the suit. See, PDP V. INEC & ORS. (2012) LPELR 9225 (CA) 18 -19, PARAGRAPHS 19-19. It was the contention of the learned counsel to the Appellant that an order against a person who was not a party to a pending suit is to no avail and cannot be allowed to stand. See, NATIONAL DEMOCRATIC PARTY (NDP) VS. INEC (2013) 6 NWLR (PT.1350) PAGE 392 AT 403; (2012) LPELR 19722 (SC) 39, PARAGRAPHS B-C; OLAWOYE VS. JIMOH (2013) LPELR 20344 (SC) 25, PARAGRAPHS C-D and OYEYEMI & ORS. V. OWOEYE (2017) LPELR 41903 (SC) 48-49.
On his second issue, it was submitted that where a party can be compensated in damages, an order of specific performance would not be granted. See, EZENWA VS. OKO & ORS. (2008) LPELR 1206 (SC) 17, PARAGRAPHS D-F. It was submitted that on the other hand, the respondent also claimed
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damages in the reliefs sought at the trial Court. It was also argued that an order of specific performance cannot be made where the party seeking the order failed to perform his part of the bargain as in the present case.
Without conceding that there was a breach of contract by the Appellant, it was submitted that the trial Court was in grave error to have made an order of specific performance as no Court should make an order that cannot be performed. See, COSCHARIS MOTORS LTD. VS. CAPITAL AND GAS LTD & ORS. (2016) LPELR 41448 (CA) 44-45, PARAGRAPHS F-A. It was submitted that there was evidence at the trial Court that the land had been sold to a third party, which the Respondent admitted in his pleadings and supplied the name of the purchaser. It was submitted that an order of specific performance would only be made where it is just and equitable to make. See, UNIVERSAL VULCANIZING (NIG.) LTD. VS. IJESHA UNITED TRADING & TRANSPORT & ORS. (1992) LPELR 3415 (SC) 36-37, PARAGRAPHS G-C. Further, it was submitted that it would not be equitable to order the Appellant to collect the sum of N900,000.00 (Nine Hundred Thousand Naira) from the Respondent
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in place of the N8,000,000.00 (Eight Million Naira) already collected from Dr. Philip Zorto over the larger portion of the land and treated their relation with the money instead of returning the Respondent?s one hundred thousand naira. See, INT. ILE IND. (NIG.) LTD. V. ADEREMI & ORS. (1999) LPELR 1527 (SC) 38-39, PARAGRAPHS E-B. It was concluded that the parties are in agreement in addition to the evidence before the trial Court that the property subject matter of the order for specific performance was sold by the Appellant?s family to Dr. Jerry Philip Zorto. We were urged to set aside the judgment of the trial Court which was said to be perverse.
In response, the learned counsel to the Respondent E.A. Nyaro Esq. relied on his brief of argument filed on 25/1/2019 as his argument in this appeal in urging us to dismiss the appeal for lacking in merit and affirm the judgment of the lower Court. In arguing his first issue, the learned counsel submitted that the issue of jurisdiction even though it was not raised at the lower Court, cannot be waived once raised and being a threshold issue, the competence of the Court must first be
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determined before it can proceed to adjudicate on the case on merit, it could be raised at any stage of the proceedings. See, A.G. RIVERS STATE V. A.G. AKWA IBOM STATE (2011) 8 NWLR (PT. 1248) AT P.165, PARAS. B-D.
It was submitted that from the pleadings and evidence before the trial Court, there was a contract of sale of a plot of land with a shop measuring 15ft by 23ft between the Appellant (vendor) and the Respondent (purchaser) and the terms of the contract were reduced into writing Exhibit ?1? which was executed by the parties on 1/9/2017. Dr. Jerry Philip Zorto was said not to have any vested interest in Exhibit ?1?. It was argued that as a general rule, a contract affects only parties thereto and cannot be enforced by or against a person who is not a party to it. See, ALFOTRIN V. A.G. FEDERATION (1996) 9 NWLR (PT. 475) P.634 AT 556 PARAS. E-F. It was submitted that Dr. Zorto was not a party to Exhibit ?1? but, was a party to Exhibit ?2? as the purchaser of land with Jacob Santi (son of late Kpanti Santi Sozon Dimba) as seller, sold to him, a piece of land measuring 43.3m by 22.4m. It was submitted
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that each Exhibit is distinct and binding on the parties therein. Further, that Dr. Zorto?s interest if any, is vested in Exhibit ?2?, he is not a necessary party for the determination of the suit by the trial Court and/or this Court since he was not a party to Exhibit ?1?.
It was submitted that non-joinder of a party cannot be the basis for ousting the jurisdiction of a competent Court, further that the non-joinder of a necessary party to an action would not render the action a nullity but, the Court may deal with the matter in controversy so far as regards the right and interest of the parties before it. See, OLUWANIYI V. ADEWUMI (2008) 13 NWLR (PT. 1104) PP.405-406, PARAS. G-B. It was submitted that the plaintiff?s claim sought to give effect to the terms of contract between the Appellant and the Respondent as spelt out in Exhibit ?1?. It was argued that there was no privity of contract between the Respondent and Dr. Zorto and that a contract binds parties thereto, not strangers, it cannot be enforced by or against a person who is not a party thereto. We were urged to hold that the non-joinder of one Dr.
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Jerry Philip Zorto who was not a party in Exhibit ?1? did not amount to a breach of fair hearing to deny the trial Court of jurisdiction.
In arguing his second issue, it was submitted that parties to a contract are bound by the terms of the agreement. It was argued that evidence adduced by both parties before the trial Court affirmed that the Respondent was a tenant of the Appellant in possession of the said piece of land in dispute before same was sold to him on 1st September, 2017, vide Exhibit ?1?. It was submitted that the Appellant sold the land in question to the Respondent on the ground that he had been a tenant on the land, this fact was pleaded by both parties in paragraphs 3, 4, 5, 6, 7 and 8 of the statement of claim and paragraphs 4,8 and 9 of the statement of defence at pages 45 and 49 of the printed records of appeal, reference was made to the evidence of the PW1 and DW1. The size of the Appellant?s family land was given as 43.3m by 22.4m as stated in Exhibit ?2?, page 67 of the printed records of appeal. Part of the land measuring 15ft by 23ft already in possession of the Respondent was sold to him
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at the consideration of N1,000,000.00 (One Million Naira) and the transaction is as shown in Exhibit ?1?. It was submitted that on the evidence led at the trial Court, the Court was right to have ordered for specific performance rather than award of damages in view of the commercial value of the land in dispute to the Respondent, who rented the premises for commercial purposes (?Chemist Shop?) based on which same was sold to him. We were urged not to interfere with the findings of the trial Court but, to affirm same.
In the Appellants reply brief it was submitted that Exhibit ?1?did not qualify as a contract of sale of land but, a mere statement of the Respondent?s intention to buy a property and nothing more. The issues were re-argued. It was concluded that a transferee is a necessary party where an order of specific performance is sought. Further, that the evidence of the PW1 and DW1 showed that the Respondent had up to 30th September, 2017 to have paid the purchase sum but failed to perform his own obligation and that as at 10th October, 2017, when the Appellant sold the property to Dr. Philip Zorto,
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there was no subsisting contract between the Appellant and the Respondent.
The issues formulated by the parties are similar but differently worded. I would utilize the issues as formulated by the appellant in determining the appeal. It is trite that the issue of jurisdiction is fundamental and a threshold issue that must be determined first before a Court would have the competence to adjudicate over any case on the merits, the issue could be raised at any stage of the proceedings, even at the Supreme Court, even if it was not raised or determined at the trial, intermediate or appellate Court. It need not be an attack on the aspect covered in the judgment. It could be freshly raised on appeal where the subject matter or the statute donating jurisdiction to the trial Court to adjudicate on the issues did not give the Court such jurisdictional power to so adjudicate on, or if any of the parties to the suit who is a necessary party was included or not included in the suit. This is why the issue of jurisdiction is often time raised as a fresh issue on appeal, with or without the leave of the appellate Court. See,
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OBIKOYA V. THE REGISTRAR OF COMPANIES AND OFFICIAL RECEIVER OF POOL HOUSE GROUP (NIGERIA) LTD. (1975) LPELR-2175 (SC) P.6, PARAS. A-B (1975) 4 SC 32); OLOBA V. AKEREJA (1988) LPELR-2583 (SC) PP.17-18; PARAS. F-D; (1988) 3 NWLR (PT.847) 508 and OKOROCHA V. UBA BANK & ORS. (2018) LPELR-45 122 (SC) PP.15-16, PARAS. E-D.
?From the pleadings of the parties and evidence before the trial Court, there was a contract of sale of a plot of land with a shop measuring 15ft by 23ft between the Appellant (vendor) and the Respondent (purchaser). The terms of the contract was reduced into a written agreement, Exhibit ?1? which was executed by the parties on 1/9/2017. Dr. Jerry Philip Zorto was not a party to Exhibit ?1? but, was a party to Exhibit ?2?, a different transaction over land measuring 43.3m by 22.4m between him and Jacob Santi, the son of late Kpanti Santi Sozan Dimba. Each of these transactions is distinct and binding on the parties therein. Generally, a contract affects only parties thereto and the terms cannot be enforced by or against a person who is not a party to it. By the doctrine of privity of contract, Exhibit ?1? cannot confer any right or
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impose any obligation on Dr. Jerry Philip Zorto, a stranger to the agreement of sale shown in Exhibit ?1?. Dr. Zorto was not a party with any vested interest in Exhibit ?1?, being a stranger to it. The learned counsel to the Appellant had challenged the jurisdiction of the trial Court to have determined the suit without joining Dr. Jerry Philip Zorto as a necessary party. It is settled law that non-joinder of a party cannot be the basis for ousting the jurisdiction of a competent Court as rightly argued by the learned counsel to the Respondent. On the other hand where a necessary party has not been joined as a plaintiff or defendant, the Court may determine the matter in controversy as regards the right and interest of the parties before it. The Court will not dismiss or strike out a suit merely because a party who ought to have been joined was left out. It is the plaintiff?s claim that determines whether a person is the proper defendant to a suit. In the present case, the plaintiff?s claim was for the Court to give effect to the terms of the contract between the Appellant and the Respondent as shown in Exhibit
13
?1?. A contract only binds parties to it, not strangers. Dr. Zorto is a stranger to Exhibit ?1? and he cannot enforce the contents and it cannot be enforced against him. The Supreme Court on whether non-joinder can defeat an action, in GREEN V. GREEN (1987) LPELR-1338 (SC) his lordship Oputa, JSC held thus:
No cause or matter shall be defeated by reason of the mis-joinder or non-joinder of any party, and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter. In other words where there has been a non-joinder either by failure of the parties or an intervener to apply for such joinder or failure of the Court to join suo motu; this non-joinder will not be taken as a ground for defeating the action. The above rule is thus designed to save rather than destroy, to cure rather than to kill the action or suit. Failure to join a party will thus under this Order (R.S.C. Order 15 R.6) not be fatal to the proceeding and the Court may determine the issues or questions so far as those issues or questions
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relate to and affect the rights and interests of the parties actually before the Court?..?
It is clear that without Dr. Zorto being joined as co-defendant, the present suit is not liable to be defeated as it is possible for the Court to adjudicate upon the cause or matter before it without the presence of Dr. Zorto. See, ONAYEMI V. OKUNUBI & ANOR (1965) LPELR-25253 (SC); IYERE V. BENDEL FEED AND FLOUR MILL LTD. (2008) LPELR-1578 (SC) and OLUWANIYI V. ADEWUMI (SUPRA). I hold that the non-joinder of Dr. Jerry Philip Zorto who was not a party in Exhibit ?1? did not rob the trial Court of its jurisdiction to entertain the matter. Issue one is resolved against the Appellant.
?Issue two faulted the evaluation of evidence by the trial Court in arriving at its decision. No doubt the parties agreed that a portion of the land where the Respondent?s shop was located be sold to him, then a tenant to the Appellant at the rate of N1,000,000.00 (One Million Naira Only), the portion housing the shop measured 15ft by 23 ft., the agreement was reduced into writing, Exhibit ?1?. This was shown by the Appellant as DW1 and
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the Respondent as PW1 in their pleadings and evidence before the Court, paragraphs 3-8 of the statement of claim and paragraphs 4, 8 and 9 of the statement of Defence, also, paragraphs 2-8 of the PW1?s statement on oath and paragraphs 4,8 and 9 of the evidence of the DW1. Exhibit ?1? dated 1st September, 2017 contains the terms of the agreement binding on both parties.
By the terms of Exhibit ?1? the Respondent paid a deposit of N100,000.00 (One Hundred Thousand Naira), the balance to be paid on a later date. There was no date stated in Exhibit ?1? when the balance of N900,000.00 (Nine Hundred Thousand Naira) was to be paid. But, on 10th October, 2017 the Appellant resold the larger portion of the land (including the portion earlier sold to the Respondent) measuring 43.3m by 22.4m, as shown in Exhibit ?2?. There was no time frame within which the Respondent should have paid the balance, therefore there was nothing to show that the Respondent defaulted in the payment of balance or that he did not keep to the terms of their agreement/contract. InMINI LODGE LTD. V. NGEI (2009) (SUPRA) cited and relied
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upon by the learned counsel to the Respondent, the Apex Court outlined the effect of part payment of a purchase price in a contract for sale of property thus:
?In a contract for sale of property, where part payment was paid, the law is that the contract for purchase has been concluded and is final, leaving the payment of the balance outstanding to be paid. The contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which an action can be maintained for specific performance?.
See, also ODUSOGA & ANOR VS. V. L. L. RICKETTS (1997) 7 NWLR (PT. 511); (1997) LPELR-2256 (SC); OHIAERI V. YUSSUF (2009) 6 NWLR (PT. 1137) 207; OSHAFUNMI & ANOR VS. ADEPOJU & ANOR (2014) LPELR-23073 (CA) and NJOKU V. EMENIKE & ANOR (2017) LPELR-41 684 (CA).
The learned counsel to the Appellant had argued that damages could have been awarded to the Respondent as compensation rather than the order of specific performance ordered by the trial Court, but the order of specific performance is anchored on the inadequacy of the remedy of damages. See,
17
AFROTEC TECH. SERVICES (NIG.) LTD. V. M. A & SONS LTD. (2000) 15 NWLR (PT.692) 730 EZENWA V. OKO (SUPRA) and HELP (NIG.) LTD. V. SILVER ANCHOR (NIG.) LTD. (2006) LPELR-1361 (SC).
The essence of the order of specific performance is based on the existence of a valid contract which is enforceable. The contract or agreement for the sale of the land between the Appellant and the Respondent vide Exhibit 1 was still subsisting at the time Exhibit 2 was entered into on 10th October, 2017 and without the knowledge of the Respondent, when the Appellant resold the land to another. It is on record that the portion of land sold to the Respondent had his shop on it where he had been carrying on his business. The Respondent did not breach any part of Exhibit 1 and there was no delay on his part to pay the balance since no time was specified and only about a month had gone by when the Appellant resold the land to a third party. The Appellant was wrong to have acted outside the terms of Exhibit 1 entered into with the Respondent, moreso the Respondent had been in possession of the land in Exhibit 1 and was entitled to a decree of
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specific performance. As I said earlier in this judgment, there is a subsisting contract or agreement for the sale of the land where the Respondent?s shop is located, therefore the land in question is of significance to the Respondent for the reason that he has been carrying on his business on the land where his shop is located and known to be operating his shop on the land with long standing customers in the area. In paragraphs 8 and 9 of the Appellant?s pleadings, the location of the Respondent?s shop on the land was pleaded, the reason why the Appellant sold the land to him in the first place.
Damages cannot therefore adequately compensate a Respondent for breach of contract for the sale of his interest in the particular piece of land where he has been carrying on his business, the available remedy for him is an order of specific performance as rightly ordered by the learned trial judge. See, UNIVERSAL VULCANIZING (NIGERIA) LIMITED V. IJESHA UNITED TRADING AND TRANSPORT CO. LTD & ORS. (1992) LPELR-3415 (SC), where his lordship Kutigi, JSC (as he then was defined an order of specific performance as follows:
A decree
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issued by the Court which constrains a contracting party to do that which he has promised to do. It is a remedy for breach of contract provided by equity to meet those cases where the common law remedy of damages is inadequate (See, BESWICK V. BESWICK (1968) A.C.58 H.L.).Thus where a vendor or lessor of land refuses to carry out his contract, an order of specific performance may be granted requiring him to execute the necessary conveyance or lease since one piece of land is not necessarily the same as another and damages may therefore not be an adequate remedy.
See, also IBEKWE V. NWOSU (2011) LPELR-1391 (SC) PP.10-11, PARAS. D-A; (2011) 4 SC (PT.11) P.125; (2011) 9 NWLR (PT.125) P.1 and ACHONU V. OKUWOBI (2017) LPELR-42102 (SC) P.31, PARAS. B-C.
The Appellant had argued that specific performance ought not to have been granted where the property subject matter of a subsisting contract has been transferred to a third party. The third party in this case is Dr. Zorto who was not a party to Exhibit 1. The order of specific performance in this case is for the Appellant to do that which he ought to do vide Exhibit 1, the
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terms of the contract/agreement between the Appellant and the Respondent, in this case where the Respondent cannot be adequately compensated in damages. I resolve issue two against the Appellant.
In sum, I hold that this Court cannot interfere with the findings of the trial Court which were rightly arrived at, having properly evaluated the evidence before the Court.
In the final analysis, the appeal fails and is hereby dismissed. I affirm the judgment of the learned trial judge in Suit No: TRSJ/130/2017 delivered on 23rd October, 2018. I award costs of N50,000.00 (Fifty Thousand Naira) to the Respondent.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother CHIDI NWAOMA UWA JCA. He has adroitly dealt with the issues for determination. I adopt his reasoning and conclusions in the lead judgment in dismissing the appeal for lacking in merit.
I abide by all other orders including the order as to costs.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
Martin Milkman, Esq. with him, J.S. Agber, Esq.For Appellant(s)
E.A. Nyaro, Esq. with him, J.A. Odekina, Esq., C.J. Francis, Esq. and J.B. Adeyogbe, Esq.For Respondent(s)
Appearances
Martin Milkman, Esq. with him, J.S. Agber, Esq.For Appellant
AND
E.A. Nyaro, Esq. with him, J.A. Odekina, Esq., C.J. Francis, Esq. and J.B. Adeyogbe, Esq.For Respondent
