SAMU'ILA DAN-TANKO (APPELLANT)
DANLAMI MAI-DAKA (RESPONDENT)
(1971) All N.L.R. 558
Division: High Court, Benue-Plateau
Date of Judgment: 7th October, 1971
Case Number: SUIT NO. MD/26A/1971
Before: Bate, S.P.J., Alkaji Iman, D.G.K., Kawu, Ag. J.
Appeal from the Upper Area Court.
(1) Under Moslem law, where a vendor has agreed to sell property to a purchaser but then, in breach of his agreement, sells or purports to sell the property to a third party, the sale or purported sale to the third party may be set aside and the vendor may be ordered to carry out his agreement to sell the purchaser at the agreed price and, when payment has been made, to give the purchaser and not the third party possession of the property.
(2) The trial Court may not vary the terms of the agreement which it orders the vendor to carry out.
SUIT NO. MD/26A/1971.
Neefo for the Appellant.
Odugbesan for the Respondent.
Kawu, Ag. J.:-The respondent brought proceedings against the appellant in an Upper Area Court concerning a house. The respondent's case was that he had agreed to buy a house from the appellant for £300 but that the appellant had broken the agreement by selling the house to a third party Alhaji Garba for £400. The respondent claimed the house. The appellant did not dispute the facts alleged by the respondent. The Upper Area Court found the facts to be as alleged. It ordered the appellant to implement his agreement to sell the house to the respondent for £400.
The appellant has appealed on the ground that the Upper Area Court erred in law in ordering the appellant to sell the house to the respondent. Counsel for the appellant has submitted that Moslem law applies, that under Moslem law no such order may properly be made; and, alternatively, such an order if permissible under Moslem law, would be contrary to natural justice, equity and good conscience and should be disallowed.
We are unable to agree with either of these last submissions. We accept that the law applicable is Moslem Law. We are advised by the Judge of the Sharia Court of Appeal who is a member of this Court that under Moslem Law where a man agrees to sell property to another but then in breach of his agreement, sells the property to a third party, the vendor may properly be ordered to implement the agreement for sale which he has broken and to give possession of that property to the person with whom he made the agreement. We therefore find that the trial Court made no error in law except insofar as it ordered the respondent to pay £400 for the house. The price stipulated in the agreement was £300 and this is the agreement which may be enforced. It was not open to the trial Court to vary that agreement. We find nothing in this contrary to natural justice.
The appeal was also argued on the general ground. We find no substance in this.
We are advised that the proper procedure under Moslem law is to order that the sale to the third party be set aside and that the vendor shall carry out his agreement to sell at the agreed price. Consequently for the order of the trial Court we substitute an order that the sale of the house to Alhaji Garba be set aside and that the appellant shall carry out his agreement to sell the house to the respondent for £300 and on payment of this sum shall deliver to the respondent possession of the house and the documents of title. Otherwise the appeal is dismissed.