Before Their Lordships
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
Between
ALHAJI FATAI KUNLE ONAYEMI Appellant
AND
1. MR. GBADESO IDOWU
2. MR. E.B. EKUNSEITAN
3. MRS. ELSIE FOLUDO AKINTOYE
4. MRS. ALAKE ASIWAJU DADA
5. THE ATTORNEY-GENERAL & COMMISSIONER FOR JUST1CE, OYO STATE
6. MR. OLUSOLA ORIOKE
…………………….A…………………….
KUMAI BAYANG AKAAHS J.C.A, (Delivering the Leading Judgment): The issue in tile preliminary objection or 5th respondent to this appeal is whether a plaintiff who was granted the alternative claim and awarded damages has a right to appeal against the main claim.
On the other hand the complaint of the appellant is that an order of specific performance should have been ordered once the learned trial Judge round that the sale of the disputed house to him was valid and that the 1st defendant acted as agent of the 2nd defendant.
The plaintiff took out a Writ of Summons and claimed in paragraphs 24, 25, 26 and 27 of the Further Amended Statement of Claim the following reliefs:-
“24 Specific performance against the 2nd defendant of the contract made the 10th day of July 1995 between the 1st defendant as agent of the 2nd defendant and his other three sisters and the plaintiff for the assignment of a landed property at SW7/43 Oke-Bola, Ibadan measuring 814.16 Square yards and as delineated in Plan No. SAP/122/60 dated 20tb September, 1960 drawn by the late Mr. S.A Sogunro-Pitan licensed Surveyor and attached to the deed of conveyance dated 20th October, 1961 and registered as instrument no. 46 at page 46 in 493 of the Land Registry Ibadan.
ALTERNATIVELY
NI.5 Million (one and a half million Naira) damages jointly and severally made against the defendants for breach of contract of an Assignment of a parcel of landed property at OkeBola, Ibadan Oyo State entered into by the first defendant as agent of the second defendant with the plaintiff at Ibadan on the 10th day of July, 1995.
Annual rental value N2,000.00.
25. A declaration against the 2nd defendant that the deed of assignment dated 12th day of August, 1997 and registered as instrument No. 40 at page 40 in volume 3247 executed by him in favour of the 6th defendant during the pendency of this suit is null, void and of no effect whatsoever and ought to be vacated in the register of deeds of the department of Lands and Physical Planning of the Ministry of Lands, Housing and Physical Planning Oyo State, Ibadan.
