Alhaji Chief A.A. Shobanke & Anor V. Alh. Abdullahi Salihu Sarki & Ors. (2005)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA, J.C.A

This is an appeal against the Judgment of the Kano State High Court NO.6 presided by Wada Rano J. delivered on the 25th September 1997. In the court below, the present Appellant as plaintiff had taken out a writ of summons to which was attached a statement of claim dated the 22nd November 1989 which was amended twice by order of court. The amended statement of claim, which was deemed filed and served on the 13th March 1992 by the then plaintiff against the defendants jointly and severally is for –

(a) A Declaration that he is the owner of the property situate at No.7 Church road Sabon Gari Kano and is entitled to the right of occupancy and possession of same.

(b) A declaration that the purported sale of the plaintiffs property situate at No.7, Church Road Sabon Gari Kano by the 1st and 2nd defendants to the 3rd defendant is ineffectual, null, void and a fraud on the plaintiff.

(c) An order setting aside the purported sale of the plaintiffs property by the 1st and 2nd defendants to the 3rd defendant

(d) An order that the defendants account for the rents collected on the property from 1985 till date.

(e) A perpetual injunction restraining the defendants jointly and severally either by themselves, assigns, privies, servants, agents or otherwise from continuing to remain in occupation of the plaintiff’s property or interfering or doing any act inconsistent with the plaintiffs ownership rights over the aforesaid property.

(f) N300,000.00 damages against the defendants for trespass.

(g) For such further order orders

The case of the Appellant is that he put his house No.7, Church Road Sabon Gari Kano for sale through his trusted friend and agent, the 1st Respondent. The 1st Respondent informed the Appellant that he had received offers from prospective buyers in the range of N50,000 – N60,000.00 for the property with possibilities of a higher offer and that the most serious of the prospective buyers who was ready to pay immediately was the one with an offer of N55,000.00. Since the 1st Respondent was aware of the loss of the Appellant Certificate of Occupancy over the house he requested the Appellant to produce an affidavit for loss of the said Certificate of Occupancy as requested by the 1st Respondent. The Appellant relying on the good faith of the 1st Respondent signed a blank transfer form without dating it and prepared a receipt for sale of the house to Alhaji Saidu Adamu on the 11th January, 1985 (without having been paid) and swore to an affidavit of loss of Certificate of Occupancy and the Appellant forwarded same to the 1st Respondent through the Appellants agent which was received by the 1st Respondent. The 1st Respondent refused to pay the purchase price of N55,000.00 to the Appellant and failed to return the documents he received despite repeated demands by the Appellants agent. Subsequently the property was fraudulently sold to the 3rd Respondent without the Appellant’s approval or consent. The Respondents denied the above averments in their statement of defence.

The defendants maintained their original statement of defence dated the 8th January, 1990 despite their rights to consequential amendments of their own pleadings as a fallout of the amendments carried out by the plaintiffs. Pleadings having thus been filed and exchanged the case went through a full trial and at the end of which the court in its judgment said the plaintiff’s case had failed in toto and accordingly dismissed same. Dissatisfied with this Judgment, the plaintiff as Appellant filed a Notice of Appeal dated the 12th December, 1997 containing twelve grounds of appeal out of which five issues were formulated in the Appellant’s Brief of argument dated the 29th November 2000 and granted via a motion dated 29th November 2000 extending time to file the said brief out of time and to deem the said Brief as duly filed and served and which motion was granted on the 30th November, 2000. The five issues formulated by the Appellant for the determination of this court are as follows:-

ISSUE No.(1)

Whether or not there was any valid enforceable contract of sale of Appellant’s property at No.7, Church Road Sabon Gari Kano between the Appellant and the Respondents on the 11th January, 1985 or any other date. This issue according to the Appellant’s brief covers grounds 1, 2, 4, 6, 8, 10 and 12 of the Notice and the grounds of appeal.