Alhaji Ibrahim Ahmad V. Sahab Enterprises Nigerial Limited & Ors (2016)

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ISAIAH OLUFEMI AKEJU, J.C.A. 

 In suit No. K/173/2009 before the Kano State, High Court the Appellant was the 1st defendant while the 2nd and 3rd Respondents were the 2nd and 3rd defendants. The 1st Respondent in this appeal Sahab Enterprises Ltd. as the plaintiff had claimed through the writ of summons and statement of claim filed on 23/4/09 the following reliefs:-
1. A declaration that the property known as plot No,62, Hotoro, GRA, Nassarawa District, Kano is covered by Certificate of Occupancy No.LKN/RES/RC/82/06, which Certificate is valid and subsisting.
2. A declaration that the plaintiff is the holder of Certificate of Occupancy No. LKN/RES/RC/82/06.
3. A declaration that title to the property known as plot No, 62 Hotoro GRA. Nassarawa District, Kano resides solely in the plaintiff.
4. An order of mandamus directing the Directorate of Land Regional Planning to register the Deed of Assignment transferring legal title to the plaintiff.
5. An order of perpetual injunction restraining the 1st Defendant either by his servants, privies or whosoever from interfering with the property known as plot No, 62

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Hotoro GRA Nassarawa District, Kano.
6. A declaration that Certificate No, LKN/RES/RC/83/2002 in as much as it covers or purports to be in respect of plot No, 62 Hotoro RA, Nassarawa District Kano in the name of the 1st Defendant is null and void.
7. An account of rent collected over the property by the 1st Defendant from 1995 until this case is determined.
8. An order of specific performance directing the 3rd defendant to hand over to the plaintiff vacant possession of the property known as plot No. 62 Hotoro GRA. Nassarawa District, Kano, having sold the said property to her.

The Appellant as a defendant entered appearance on 10/7/09 through his Counsel, Nahabani Usman Esq., of Nahabani Usman & Co., but no statement of defence was filed on behalf of the Appellant by the learned Counsel who attends proceedings on two occasions between 10/7/09 and 20/7/11.
The suit was heard in the absence of the Appellant at the trial that started on 24/2/11 and was concluded on 22/3/11. In the judgment delivered on 21/7/11 by the High Court of Kano State all the reliefs sought by the 1st Respondent as plaintiff were granted. The Appellant

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thereafter applied to the High Court of Kano State for the order setting aside the judgment which application was refused by that Court consequent upon which the appellant commenced this appeal.

Thus by the motion on Notice dated 18th June, 2012 and filed on 19th June, 2012, the Appellant had Sought the following prayers:-
(a) AN ORDER setting aside all ORDERS, judgments, directions granted in favour of the Plaintiff/Respondents by this Court on the 21st day of October, 2017 in this matter.
(b) AN ORDER GRANTING LEAVE to the applicant to file his statement of defence to the action,
(c) AN ORDER RESTRAINING the 1st Respondent from tampering in any way with the subject of this suit.
(d) AN ORDER RESTRAINING the 1st Respondent from collecting rents or disturbing the tenant occupying the subject ? matter.
(e) Any other orders as this honourable Court deems fit in the circumstances.
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In response to the affidavit of 8 paragraphs in support of the motion and the Exhibit A attached thereto, there was a Counter affidavit filed by the 1st defendant that prompted the further and better affidavit of 7 paragraphs by the applicant

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to which Exhibit 1 was attached. After considering the affidavit evidence of the parties and the written addresses of their learned Counsel, the High Court of Kano State, now called the trial Court refused the prayers of the applicant and dismissed the motion in the Ruling delivered on 31st January, 2013.

Aggrieved by this decision of the trial Court, the applicant now called the Appellant commenced the instant appeal by filing the Notice of appeal dated the 4th day of February, 2013 with four grounds of appeal, and in line with the Rules of this Court the Briefs of Argument were filed by the parties.

The Appellant’s Brief of Argument settled by Farouk Idris Umar Esq., filed on 30/6/14 while the 1st Respondent’s Brief filed on 5/9/14 was deemed properly filed on 13/10/15. It was settled by Bayo Funso Adaramola Esq.

The Appellant formulated the following issues for determination;
1. Whether having regard to the circumstances of this case, the Lower Court ought to have all its orders and directions as contained in its judgment given in default of defence set aside.
2. Whether a defendant is entitled to be heard if such a Defendant

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