• Dantata v. Mohammed
  • 21
  • 2000-10-23
  • ₦ 200
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Dantata v. Mohammed













FRIDAY, 5TH MAY, 2000.

ACTION - Cause of action - Meaning of - When it accrues

ACTION - Plaintiff seeking only declaratory reliefs - Whether cause of action can arise therefrom

ACTION - Reasonable cause of action - Meaning of

ACTION - Reasonable cause of action - Weakness of plaintiff’s case irrelevant in determining

ACTION - Relief seeking to declare agreement between parties null and void on grounds that one party has not fulfilled his own side of the bargain - Whether cognisable - Appropriate reliefs to be sought thereby

APPEAL - Appealable decisions - Gratuitous advice offered by Court Whether forms part of reasons for decision

APPEAL - Grounds of Appeal - Issues for determination not encompassed in - How treated

CONTRACT  - Consideration - Complete failure of - When it occurs Remedy open to innocent party

CONTRACT - Breach of - Party who has performed his own side of contract and has not received agreed counter-performance - Remedy open to

CONTRACT - Breach of - Right of innocent party to rescind - When exercisable

CONTRACT - One party to a contract agreement not fulfilling his own side of the contract - Other party seeking declaration that agreement null and void in respect thereof - Whether declaration can be granted thereby - Appropriate reliefs

CONTRACT - Recission of - Right to rescind by innocent party - When available and exercisable

COURT - High Court of Lagos State - Jurisdiction to grant declaratory reliefs - When and how exercised - Source of, Order 22, rule 5 High Court of Lagos (Civil Procedure) Rules, 1972

COURT - Opinion expressed by way of advice by court - Whether forms part of reasons for decision

COURT - Supreme Court - Order 8, rules 2 and 12, Supreme Court Rules When invoked

JUDGMENT AND ORDERS - Declaratory judgments - When granted Whether to be regarded as auxiliary or consequential orders

LAND LAW - Claim for possession - What it presupposes

PRACTICE AND PROCEDURE - Joinder of actions - Right of plaintiff to -  Limitations thereto, Order 15 rule 1 High Court of Lagos (Civil Procedure) Rules

PRACTICE AND PROCEDURE - Pleadings - ‘Cause of action’, reasonable cause of action - When disclosed therein

PRACTICE AND PROCEDURE - Pleadings - allegation that plaintiff’s claim does not disclose reasonable cause of action - What the court should consider

PRACTICE AND PROCEDURE - Pleadings - Pleadings containing averment that there is breach of contract enough to justify a claim that plaintiff no more bound by it - Whether discloses reasonable cause of action


  1. Whether the Court of Appeal was right in holding that plaintiff’s claims (a) and (b) disclosed reasonable cause of action.
  2. Should the Supreme Court exercise its powers under Order 8, rules 2, 12 of the Supreme Court Rules and restore plaintiffs claims (c), (d) and (e) despite the fact that the plaintiff/ respondent did not file a cross-appeal against the decision of the Court of Appeal in respect thereof.


By a written agreement between the plaintiff and the 1st defendant, dated 28th November, 1980, the parties agreed to exchange their respective properties, to wit, the plaintiff’s undeveloped property situate at Plot C, Turnbull Road, Ikoyi, Lagos for the 1st defendant’s property situate at Industrial Plot, Sharada, Kano and consisting of four acres, half of which had been developed by the 1st defendant’s factory built thereon.  Pursuant to the said agreement, the plaintiff let and put the 1st defendant into possession of his property, and also gave him consent to mortgage the said property to International Bank of West Africa Ltd., which would assist the 1 st defendant to raise money for the development of the said property.  1st defendant, in fact, developed the property by erecting a house thereon, occupied it for some years and thereafter leased it to the 2nd defendant. Strangely, the 1st defendant, in breach of the agreement, failed to perform his own part of the agreement by putting the plaintiff into possession of his own property, despite several demands by the plaintiff.  Consequent to this stalemate, the plaintiff instituted this action and claimed as follows:-

“(a) Declaration that the plaintiff is the person entitled to certificate of occupancy, dated 26th day of September, 1979, registered as No. 24 at page 24 in volume 1875 of the Register of Deeds, kept at the Lagos State Land Registry, Lagos, Nigeria.

  1. Declaration that the plaintiff is the person entitled to all premises known as Turnbull Road, Ikoyi, now Jabita Close.
  2. Declaration that the agreement dated 28th November, 1980 BETWEEN plaintif9wf and the 1st defendant is null and void and not binding on the plaintiff, as the 1st defendant has breached in a fundamental manner the provision of the said agreement.
  3. Possession of the said Premises.
  4. An order of perpetual injunction restraining the defendants, their agents and or any person whosoever deriving authority from any of the said defendants from dealing with and or interfering with the plaintiff’s right in and over the aforesaid land in any manner howsoever, having the effect prejudicing and or adversely affecting the rights of the plaintiff in the said  land.”

In reply to the plaintiff’s statement of claim, the defendants respectively filed and served their statements of defence.  It is, however, important to note that the 2nd defendant additionally filed a counter-claim to his statement of defence, seeking a declaration of the trial court that he is entitled to  be registered as owner of the property,p situate at Plot C, Turnbull, Ikoyi, Lagos.

After parties had exchanged pleadings, and before the trial commenced, the 1st defendant, by a motion, brought pursuant to Order 16 rule 25 and Order 22 rules 2, 3 and 4 of the High Court of Lagos (Civil Procedure) Rules 1972 and under inherent jurisdiction prayed for an order dismissing plaintiff’s case on the ground that it disclosed no reasonable cause of action and the reliefs sought were unobtainable at law.

The learned trial judge held that if breach of contract is alleged, nullification of the contract as claimed by the plaintiff by his relief (c) was not the appropriate relief to be sought.  The trial judge regarded relief (c) as the main relief and the others as merely supporting that relief and consequential to the grant of the main relief. She further held that in any event, the action was statute-barred and dismissed the action.

On plaintiff’s appeal to the Court of Appeal, that Court allowed the appeal only to the extent that the trial judge was wrong in holding that as regards reliefs (a) and (b), the statement of claim did not disclose a reasonable cause of action and that the action was statute-barred.  In regard to the other reliefs, the appeal was dismissed.  The Court of Appeal held the view that the action was sustainable by the declaratory reliefs sought in ( a) and (c) and expressed an opinion that the plaintiff could amend his statement of claim to seek further reliefs of specific performance and damages.

Being dissatisfied, the defendants appealed to the Supreme Court. The plaintiff did not cross-appeal against the decision of the Court of Appeal as regards the dismissal of his claims (c) and (e).

It was contended on behalf of the appellants:

Firstly, that there was no reasonable cause of action disclosed because

  1. the plaintiff averred that he had let the 1st defendant into possession of the property, pursuant to the agreement, and that the latter had developed it.
  2. the plaintiff has on his own showing admitted that he had transferred the property to the 1st defendant.
  3. it would be inequitable to grant the declarations sought.

Secondly, that since, as held by the learned trial judge, reliefs (a) and (b) were merely ancillary to relief (c) in regard to which the Court of Appeal had held that a cause of action had not been disclosed, the court below should have held that the other reliefs which were merely consequential to that relief could not be granted.

Thirdly, the suggestion made by the Court of Appeal that the plaintiff could amend his statement of claim to claim specific performance is inconsistent with the opinion that reliefs (a) and (b) could sustain the action.

Order 22, rule 5, High Court of Lagos (Civil Procedure) Rules, 1972 ( now Order 23, rule 5) reads :

“No action shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the court may make binding declarations of rights whether any consequential relief is or could be claimed or not”