OKO-OBOH v. GUOBADIA & ANOR

…………………….A…………………….

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): In the High Court of Edo State, holden at Benin City, the appellant as plaintiff instituted Suit No. B/406/2002 in which she sought against the respondents, who were the defendants in the said Court, the following reliefs:
a) A declaration that the transfer made by the 2nd defendant on 11/2/02 between the plaintiff and 1st defendant purportedly transferring plaintiff’s house at No. 1, Iyen Lane, Off Owina Street, Evbotubu Quarters, Benin City to the defendant is null, void and of no legal effect whatsoever.
b) A declaration that the purported transfer/receipt made by the 2nd defendant on 11/2/02 between the plaintiff and the 1st defendant does not meet the legal requirements of a deed of transfer and/or document relating to transfer of title to a real property the said document having not stated the total cost of the house.
c) A declaration that the purported transfer/receipt made by the 2nd defendant on 11/2/02 between the plaintiff and 1st defendant is not capable of transferring the title of the plaintiff to that property lying, situate and known as No. 1, Iyen Lane, Off Owina Street, Evbotubu Quarters, Benin City, to the 1st defendant in that it was neither executed by both parties nor was any witness present.
d) An order of Court directing the 2nd defendant to return all the title deeds and document relating to that plaintiff’s house at No. 1, Iyen Lane, Off Owina Street, Evbotubu Quarters, Benin City, which he took from plaintiff in course of this transaction.
ALTERNATIVELY
An order of Court on the 1st defendant to pay the plaintiff the agreed sum of N5,000,000.00 (Five Million Naira) for the said house at No. 1, Iyen Lane, Off Owina Street, Evbotubu Quarters, Benin City, if he insists on buying same.

The respondents filed two separate statements of defence in which they respectively, denied the appellant’s claims. The 1st respondent even counterclaimed against the appellant as follows:
a. An order of Court directing the plaintiff to receive the sum of N200,000 (Two Hundred Thousand Naira) from the 1st defendant being balance of the agreed price of N1.2m for no 1, Iyen Lane, Benin City as per part-payment receipt dated 11th February, 2002.
ALTERNATIVELY
An order of Court directing the plaintiff to return the sum of N1m (One Million Naira) with interest at 21% yearly being money received from the 1st defendant as part-payment for plaintiffs house at no. 1, Iyen Lane, Benin City.
b. The sum of N4m as general damages for breach of contract.

At the conclusion of hearing, the trial Court delivered a reserved judgment on 15/09/2009 in which it concluded as follows:
In the circumstances all the claims of the plaintiff as well as the alternative claim fail and they are hereby dismissed. The counter claim of the 1st defendant succeeds. Accordingly, it is ordered that the plaintiff do receive the sum of Two Hundred Thousand Naira (200,000.00) from the 1st defendant being the balance of the agreed purchase price for the plaintiff’s house situate No. 1, Iyen Lane, Off Owina Street, Evbotubu Quarters, Benin City.
The 1st defendants claim to Four Million Naira General Damages for breach of contract is dismissed. No order as to costs.

This appeal is against the decision of the trial Court dismissing the appellant’s claim and granting the 1st respondent’s counterclaim. The appeal was heard based on:
(i) the further amended notice of appeal filed on 12/04/2017 and deemed as properly filed on that day;
(ii) the second further amended appellant’s brief filed on 23/11/2017 but deemed as filed on 05/12/2017; and
(iii) the further amended respondents brief filed on 05/01/2018.
PRELIMINARY OBJECTION
The respondents filed a notice of preliminary objection on 02/12/2016 but no arguments were proffered thereon. The said preliminary objection was, therefore, abandoned by the respondents and it is hereby struck out.
SUBSTANTIVE APPEAL
Learned counsel for the appellant formulated three issues for determination as follows:
(1) Whether the learned trial judge was right to order specific performance of a contract tainted with fraud.
(2) Whether the learned trial judge erred in law when he relied on the evidence obtained from the plaintiff under cross-examination on un-pleaded facts to uphold the 1st respondent claim.
(3) Whether or not the judgment was not against the weight of evidence adduced.