Between
CHIEF GOODWILL ATIEMORA-MUSA AGBONENI
Appellant
AND
CHIEF GOODWILL ATIEMORA-MUSA AGBONENI- Appellant
AND
CHIEF FATAI ALAKIU –
Respondent
Before Their Lordships
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
CHIEF GOODWILL ATIEMORA-MUSA AGBONENI- Appellant
AND
CHIEF FATAI ALAKIU –Respondent
…………………….A…………………….
UGOCHUKWU ANTHONY OGAKWU, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State, Coram Judice: Candide-Johnson, J. in SUIT NO.LD/410/2008: CHIEF GODWILL ATIEMORA-MUSA AGBONENI vs. CHIEF FATAI ALAKIU delivered on 3rd March 2016.
The Appellant who was the Claimant at the Lower Court claimed the following reliefs against the Respondent:
(a). An Order directing the Defendant to refund to the Claimant the sum of N7,000,000.00 (Seven Million Naira) being the purchase price paid in respect of the 2 plots of land lying, situate and being at Mobolaji Ajibola Street, Thomas Estate, Ajah, in Eti-Osa Local Government Area of Lagos State for total failure of consideration in that the Defendant has failed to give effects title or confer any interest on the Claimant.
b). Interests on the N7,000,000.00 (Seven Million Naira) at rates or at 10% per annum from November, 2004 until judgment is delivered and thereafter at the rate of 10% until the final liquidation of the debt. Pleadings were filed and exchanged and the case was subjected to a full dressed plenary trial at which testimonial and documentary evidence was adduced. At the end of the inter parties hearing, the Lower Court dismissed the Appellants action. The Appellant being dissatisfied appealed against the said judgment. The judgment of the Lower Court is at pages 159-161 of the Records, while the Notice of Appeal is at pages 163-166 of the Records.
Upon the Records of Appeal being compiled and transmitted the parties filed and exchanged briefs of argument. The Appellants Brief was filed on 27th June 2016, while the Respondents Brief was filed on 11th October 2016. The Appellant filed his Reply Brief on 29th June 2017. The Respondents Brief and the Appellants Reply Brief were deemed as properly filed on 3rd July 2017. At the hearing of the appeal, Mrs. A. S. Odukomaiya-Iyamu (with T. Ologunorisa, Esq.), learned counsel for the Appellant and Waheed Kasali, Esq. (with S.A. Kanabe, Esq.) of counsel for the Respondent urged the Court to uphold their respective submissions in the determination of the appeal.
The Appellant framed six issues for determination, as follows:
(a) Whether or not it is right for the trial Judge to raise the issue of non-joinder of a necessary party suo motu and basing his judgment on it without inviting the parties to address the Court on it. (Ground 1)
(b) Whether the refusal of the trial judge to invite parties or their counsel to address it on the issue raised suo motu amounts to denying the Appellant his right to fair hearing. (Ground 2)
(c) Whether or not Mobolaji Ajibola was a necessary party to the suit and his non-joinder will amount to dismissal of the suit. (Ground 3)
(d) Whether or not the action of the Appellant for money had and received has anything to do with ownership of land. (Ground 4)
(e) Whether or not the Court ought to grant the cost of N50,000 against the Appellant when the Court did not invite Appellants counsel to address it on the issue of non-joinder upon which the judgment was based. (Ground 5)
(f) Whether or not in view of the facts of this case and evidence, the Appellant is entitled to the refund of the purchase price in the sum of N7million with interest for total failure of consideration.(Ground 6). The Respondent on his part nominated five issues for determination, namely:
1. Whether the learned trial judge at any time raised issue of non-joinder of an adverse
…………………….B…………………….
