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  • Mohammed v. Klargester Nigeria Limited
  • 127
  • 2002-11-04
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Mohammed v. Klargester Nigeria Limited

ALHAJI IBRAHIM MOHAMMED

V

KLARGESTER NIGERIA LIMITED

SUPREME COURT OF NIGERIA

ABUBAKAR BASHIR WALI, JSC ( Presided )

EMMANUEL OBIOMA OGWUEGBU, JSC ( Read the Lead Judgment )

ANTHONY IKECHUKWU IGUH, JSC

UMARU ATU KALGO, JSC

SAMSON ODEMWINGIE UWAIFO, JSC

SC.114/1995

FRIDAY, 5TH JULY, 2002

ADMINISTRATION OF ESTATE - Jointly inherited property - Sale of same by one of the heirs without ratification by other co-heirs - Effect

ADMINISTRATION OF ESTATE - Property of an intestate person Ownership thereof - On whom devolves

CONTRACT - Specific performance  - Where impossible to compel the party to do something - Whether court will order specific performance

COURT - Supreme Court - When will interfere with concurrent findings of lower courts

EVIDENCE - Facts pleaded - When not supported by evidence - Effect of

EVIDENCE - Matters not pleaded - Evidence regarding same - Effect of

EVIDENCE - Where evidence at variance with pleadings - Effect thereof

LAND LAW - Family property - Sale of same without support of other members of the family - Effect

LAND LAW -  Nemo dat quod non habet and caveat emptor - When applicable - Effect of application of the maxim on sale of land

MAXIM - Nemo dat quod non habet and caveat emptor - When applicable PLEADINGS - Evidence at variance with pleading - Effect of

PLEADINGS - Facts pleaded - When not supported by evidence - Effect of PLEADINGS - Matters not pleaded - Evidence regarding same - Effect of

PLEADINGS - Statement of claim - Averments therein - Where evidence of plaintiff is at variance therewith - Duty of court

PRACTICE AND PROCEDURE - Facts pleaded - When not supported by evidence - Effect of

PRACTICE AND PROCEDURE - Statement of claim - Averments therein -

Where evidence of plaintiff is at variance therewith - Duty of court

PRACTICE AND PROCEDURE - Writ of summons and pleadings - Case put forward by plaintiff therein - Bindingness of on plaintiff

Issues:

1.            Whether the Court of Appeal was correct in affirming the reliefs of specific performance, immediate possession and injunction over the property situate at No. K.20 Chawai Road, Tudun Wada, Kaduna when there was irrefutable evidence that the property did not belong to the appellant and when the respondent’s pleading was not supported by the evidence led in the trial court?

2.            Whether the Court of Appeal was right in limiting the interest of the appellant’s 3 co-heirs to the purchase sum of N35,000, when there was evidence that the entire transaction was without their consent and if answered negatively, whether the disclosure of this interest did not vitiate the entire transaction between the respondent and the appellant?

Facts:

The plaintiff instituted this action against the defendant claiming inter alia specific performance of an agreement between the plaintiff and the defendant to sell the house in dispute to the plaintiff company. Defendant averred that the house in dispute did not belong to him, while evidence of other witnesses also revealed that the house was an inherited house, which was jointly owned by the defendant and his co-heirs. At the conclusion of trial, the trial court entered judgment for the plaintiff. On appeal to the Court of Appeal, the Court of Appeal affirmed the decision of the trial court. Aggrieved the defendant/appellant further appealed to the Supreme Court.