Gaji v. Paye (2003)



Gaji v. Paye (2003) – SC

by PaulPipAr

⦿ TAG(S)

– Family Property;
– Specific Performance;
– Damages;
– Jurisdiction;
– Interference by appeal court;


1. Isaac Gaji;
2. Ladi Gaji;
3. Ayuba Gaji (For and on behalf of Gaji Family);


1. Emmanuel D Paye;


(2003) 8 NWLR (Part 823) 583;


Supreme Court







⦿ FACT (as relating to the issues)

In the trial High Court aforesaid, the respondent on records as plaintiff sued the 1st appellant Isaac Gaji as the sole defendant over the property in dispute, which the latter sold to the former.

The plaintiff’s case was that in September, 1987, he was introduced by one Bulus Damagai PW1 to the 1st defendant who wanted to sell his house known as ‘Good Hope Hotel’ or ‘Mayor Hotel’ consisting of 23 (22) rooms. The 1st defendant had represented that the house belonged to him. They negotiated and agreed on N11,000 (eleven thousand naira) as the selling price. The plaintiff PW4 thereupon made a part payment of N6,000 (six thousand naira) and the 1st defendant issued him a receipt (exhibit PI). Subsequently, in November, 1987 in the presence of Bulus Garba (PW2), the plaintiff paid the balance of N5,000 (five thousand naira) and was issued with another receipt which was not admitted in evidence for want of registration. It is the plaintiff’s case that despite the fact that he paid the agreed price, the 1st defendant has refused to transfer possession of the property in dispute to him. Explaining how the 1st defendant derived title to the plot of land on which the 22 roomed house was built, the plaintiff called Muhammadu Ninzoma PW3 who testified that it was one Zubairu Sariki the agent of Sarikin Gari Gwagwalada who on behalf of the Sariki allocated the plot to the 1st defendant alone and not jointly with anyone else.

1st defendant gave no evidence.

The case for the 2nd and 3rd defendants was that the land on which the house of 22 rooms was built was allocated by Sariki Gwagwalada to the father of 1st and 3rd defendants and by implication it is the family land of Gaji. The 3rd defendant DW2 claimed that he moulded some blocks and engaged a mason to develop part of the land by erecting a building of 13 rooms on the land. Ladi Gaji, the 2nd defendant and the wife of the 1st defendant also developed part of the land by erecting a house of 9 rooms. They both alleged that they were unaware that the 1st defendant without the consent of the 3rd defendant the head of the family. Answering questions under cross-examination, the 3rd defendant (DW2) disclosed that he and the 1st defendant have a common mother but different fathers. To support their claim that they 2nd and 3rd defendants built the property in dispute, they called as witnesses Abdullahi Bamagi (DW4) the bricklayer who built the house, a carpenter Francis Akpan (DW5) who roofed the building and Okoro Sunday Vincent (DW6) said to be the oldest tenant in the property in dispute.

Available:  Chief Joseph Adolo Okotie-Eboh v. Chief James Ebiowo Manager & Ors. (2004)

At the end of the trial, counsel for the parties addressed the court and in the course of its judgment the court had to make findings on the various issues agitated by counsel. The court found as a fact that there was a contract for the sale of the property in dispute by the 1st defendant to the plaintiff as a result of which the latter paid the sum of N11,000 to the former; that the property was the family property of the 1st and 3rd defendants’ family; that no consent was obtained from the 3rd defendant the head of the family thus rendering the sale void or voidable; that members of the family contributed in the development of the property in dispute and that the court had the jurisdiction to entertain the suit. Based on these crucial findings, the trial court dismissed the plaintiff’s claim.

Aggrieved by the decision of the trial High Court, the plaintiff appealed to the Court Appeal, which in a unanimous decision set aside the decision of the High Court and entered judgment for the plaintiff for an order of specific performance of the contract made between the plaintiff and the 1st defendant and an order of possession of the property in dispute in favour of the plaintiff.

The defendant (herein Appellant) has appealed to the Supreme Court.


1. Whether the Court of Appeal was entitled to reverse the findings of fact made by the trial court in this case on the property in dispute in this case was family property of the appellants’ family and that the house was put up by the collective efforts of members of the appellants’ family when the findings were adequately supported by evidence?

2. Whether the Court of Appeal was right to have ordered specific performance of the contract in the proceedings?




1. Having thus asserted that the property in dispute belongs to the family of Gaji of which the 3rd appellant is the head, the onus, is upon the 2nd and 3rd appellants to prove that assertion. In his attempt to discharge that burden, Ayuba Gaji, the 3rd appellant demolished their case when, in answer to questions under cross examination, he at page 42 line 4 et seq testified thus: “I am never called Umaru. My name is Ayuba. I do not agree that Isaac Gaji is not related to me. Our mother’s name is Sumboya. She is alive at the moment. Yes my name is Umaru now $since my conversion to Islam. My relationship with Isaac is that we have the same mother but different fathers. My father’s name is Daudu.”

It is evident from the above extract particularly that the 3rd appellant is not a member of Gaji family but that of Dauda family. A fortiori, he could not be the head of a family of which he is not a member. I do not agree with the appellants’ counsel that the evidence given by the 3rd appellant (DW2) under crossexamination is inadmissible in the circumstances of this case. It is my respectful view that having regard to the evidence of the 3rd appellant disclosing that he and the 1st appellant have different fathers, the facts pleaded in paragraph 3 and 6 of the joint statement of defence of the 2nd and 3rd appellants had not been established. Put differently, the appellants have not established that the property in dispute is the family property of the father of the 1st and 3rd appellant as going by the printed record there is or was never in existence the father of 1st and 3rd appellants.

Available:  Ugwuezumba Onwukiru v. The State (1994)


i. The decree of specific performance granted in favour of the respondent cannot be faulted in the circumstance of this case. It is settled law that an order of specific performance is an equitable remedy granted to a successful litigant constraining the losing party to carry out the agreement, which it had entered into with the successful litigant. Like all equitable remedies, it is at the discretion of the court but the discretion must be exercised judicially according to settled rules and principles. Although generally, an order of specific performance will not be readily granted where a remedy in damages is adequate, in a case involving sale of land, the law is that damages cannot adequately compensate a party for breach of a contract for the sale of an interest in a particular piece of land or of a particular house in which case the order for specific performance is available at the instance of the vendor or purchaser.

ii. In the present case, the trial court found as a fact that the respondent paid to the 1st appellant the sum of N11,000 (eleven thousand naira) as consideration for the sale of the property in dispute. As noted earlier, there was no appeal against that finding. Applying the principle enunciated above, the respondent was entitled, to a decree of specific performance of the property in dispute. It is not open to the court to enquire into the adequacy of the consideration.







The general principle is that when a party seeks to file and argue in this court any fresh issue not canvassed in the lower courts whether that issue pertains to land or otherwise, leave to file and argue the issue must be had and obtained first. But where the point or issue sought to be raised relates to the issue of jurisdiction, the point or issue can properly be filed and argued with or without the leave of the court even if it is being raised for the first time. – EDOZIE, J.S.C. Gaji v. Paye (2003)

As a general principle of law, the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a trial court, which saw, heard and assessed the witnesses. Where a court of trial, unquestionably evaluates the evidence and makes definite findings of fact, which are fully supported by such evidence and are not perverse, it is not the business of the Court of Appeal to substitute its own views for those of the trial court. – EDOZIE, J.S.C. Gaji v. Paye (2003)

Available:  Abainta Okendu Ubani & Ors v. The State (2003)

It has been said that the effect of failure to cross-examine a witness upon a particular “matter is a tacit acceptance of the truth of the evidence of the witness”. – EDOZIE, J.S.C. Gaji v. Paye (2003)


The principle “quid quid plantatur solo solo cedit” implies that once the plaintiff is adjudged to be the rightful owner of the land, the land together with what is on it automatically becomes his. – EDOZIE, J.S.C. Gaji v. Paye (2003)

Similarly, the claim by the 2nd appellant that she invested her money on the building does not affect her husband’s right to sell the property. – EDOZIE, J.S.C. Gaji v. Paye (2003)

Family property could be created by a number of ways, including death intestate (devolution), conveyance inter vivos, will and gift or allotment. For land to qualify as family land, the party who so claims must not only identify the origin of the property but also its status. – Tobi, J.S.C. Gaji v. Paye (2003)

It is new learning to me that evidence procured from crossexamination is inadmissible. Evidence procured from crossexamination is as valid and authentic as evidence procured from examination-in-chief. Both have the potency of relevancy and relevancy is the heart of admission in the law of Evidence. Where evidence is relevant, it is admissible and admitted whether it is procured from examination-in-chief or cross-examination. – Tobi, J.S.C. Gaji v. Paye (2003)

A trial Judge is both a Judge of law and facts. He gets in contact with the facts for the first time. As a Judge of facts, he evaluates the evidence of the witnesses. But the law does not give him the exclusive power to evaluate the evidence. Since the evidence of witnesses is duly recorded, an appellate Judge has the power to evaluate such evidence, this time around, from the record. If an appellate judge finds from the record that the trial Judge properly evaluated the evidence before him, an appellate Judge has no business to interfere and substitute his own findings and conclusion, just to make the difference and exhibit appellate power. The law does not give such power to an appellate Judge. But where the evaluation of the evidence which led to the finding of a trial Judge is perverse, an appellate Judge is in a good position to reverse such evaluation and therefore the finding that resulted in the evaluation. This is because the evaluation and subsequent finding is not borne out from the evidence of the witness. – Tobi, J.S.C. Gaji v. Paye (2003)




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