Effect of Part Payment in a Contract of Sale of Property

CASE TITLE: MUSTAPHA v. HANGA & ANOR (2023) LPELR-60199(CA)

JUDGMENT DATE: 3RD APRIL, 2023

PRACTICE AREA: CONTRACT

LEAD JUDGMENT: ITA GEORGE MBABA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on civil procedure.

FACTS:

This appeal is against the judgment of the Kano State High Court in Suit No. K/440/2012, delivered on 13th May, 2016, by Hon. Justice A.T. Badamasi.

At the trial Court, the Respondent sought the following reliefs:

(1) A declaration that the Plaintiff, having made substantial part payment of N40,000,000 out of N50,000,000.00 leaving the balance of N10,000,000.00 which has been and is ready and willing to pay, but for the frustrating conduct of the 1st Defendant, is the rightful owner of the portion of sub-division of the No. 20 Sokoto Road Nasarawa GRA, Kano.

(2) A declaration that the refusal by the 1st Defendant to accept the agreed balance of N10,000,000.00 from Plaintiff and thereby execute a deed of assignment in Plaintiff’s favour is a breach or frustration of the oral conduct of the sale.

(3) An order of specific performance of the contract of sale directing the 1st Defendant to collect the balance of N10,000,000.00 from Plaintiff and consequently, execute a deed of assignment transferring ownership of the sub-divided portion of land known as No. 20 Sokoto Road Nasarawa GRA, Kano to the Plaintiff.

(4) An Order directing the Defendants to surrender all the title documents and vacant possession of the sub-divided portion of land to the Plaintiff.

(5) An Order of Perpetual injunction, restraining the Defendants, jointly and severally, by themselves, their servants, their agents, their privies, their representatives or by whosoever or howsoever name they are called/described from selling, alienating or transferring/assigning title in and over the portion of land bought by the Plaintiff from the 1st Defendant to any person(s).

(6) N5m General damages for the breach and frustration of the contract of sale.

(7) Cost of this action.

The 1st Defendant/Appellant had filed an Amended Statement of Defence to defend the suit and raised a counter-claim. After hearing the parties and witnesses, and considering the evidence and addresses of Counsel, the trial Court entered judgment for Plaintiff/1st Respondent and granted his reliefs. Dissatisfied, the appellant appealed to the Court of Appeal.

The respondents filed a preliminary objection, challenging the competence of the appeal.

ISSUES:

The Court considered the merits of the preliminary objection on the grounds the notice of appeal is incompetent, having been filed without leave of the Court. The appeal was also considered on the merits.

DECISION/HELD:

The preliminary objection was upheld and the appeal was struck out. On the merits, the appeal failed.

RATIOS:

• APPEAL – NOTICE(S) OF APPEAL: Effect of a defective/incompetent notice of appeal
• CONTRACT – VALIDITY OF CONTRACT: Essential ingredients of a valid contract
• JUDGMENT AND ORDER – DELIVERY OF JUDGMENT: Effect of failure of the court to deliver its judgment within the time frame stipulated for delivery of judgment
• LAND LAW – CONTRACT OF SALE OF LAND/PROPERTY: Effect of part payment of purchase price in a contract for sale of property
• LAND LAW – CONTRACT OF SALE OF LAND/PROPERTY: Difference between payment of the deposit and part payment

Go to primsol.lawpavilion.com to read the full judgment.