Alhaji Tukur Mohammed V. Alhaji Abubakar Abdulkadir & Ors (2007)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A.

This is an appeal against the judgment of U. Adamu J (now retired) of Kaduna State High Court of Justice (the lower court) delivered on 11th day of March 2003. The first respondent herein as plaintiff at the lower court, sued the respondents herein as co defendants and sought the under mentioned declaratory and injunctive reliefs as per his Amended Statement of Claim dated 10th of January, 1997. The reliefs are;

1.) A declaration that the purported sale of the plaintiff’s property situate at No 3 Kachia Road Shopping Centre, Kaduna South, Kaduna covered its by Certificate of Occupancy No 6500 carried out sometimes in June 1992 without the knowledge or consent of the plaintiff is unlawful null and void illegal, and contrary to existing Federal Legislations and contrary to the Deed of Legal mortgage, in that;

(a) The exercise of sale is conditional upon compliance with the mandatory provisions of Land Use Act.

(b) No consent was obtained until the 3rd of May 1994 after the plaintiff had liquidated the loan account to which the property was tied.

(c) Even the consent obtained had been reversed by the Military Administrator of Kaduna State.

(d) Consequently, at the time of the said transfer the 1st defendant no longer had any right or title over the said property to transfer to the 2nd Defendant.

2. A declaration that the said exercise of power of sale was vitiated by overt acts of bad faith and or fraud in that:-

(a) The property was not sold for its market price.

(b) No proper valuation was carried out so as to ascertain the true worth of the property.

(c) No licensed auctioneer was appointed as required under the Auctioneer’s Law, Cap (sic) to carry out the auction.

3. A declaration that the Deed of Legal mortgage was void on account of the fact that at the inception of the transaction, there was no deposit of the Certificate of Occupancy.
4. A declaration that with the payment of the principal loan in the sum of N=1.8m vide a cheque of N=3.6m on 4/2/94 the property purportedly mortgaged stood released from the terms of the mortgage deed and the balance which consists on only interest elements can only be recovered through an action instituted in court.
5. On account of Declarations in 1,2,3 and 4 herein, an order setting aside the purported sale of the afore described property.
6. A declaration that the 2nd Defendant based on the foregoing and on the maxim NEMO DAT QUAD NON HABETAT did not and can not acquire any title to the plaintiff’s aforesaid property on the ground that all steps leading to the purported sale was vitiated by the Defendant’s breaches of statutory pre-conditions and the Deed of legal Mortgage covering the property.
7. A perpetual injunction restraining the Administrator of Kaduna State from cancelling or purporting to cancel the plaintiff’s Certificate of Occupancy No 6500 dated the 21st day of September 1978 or granting or purporting to grant a right of occupancy in the name of the 2nd Defendant or in the name of any other person so long as the basis of the purported transfer is predicated on any purported transfer of title from 1st Defendant to the 2nd defendant.
8. An order of injunction restraining the 4th Respondent acting in the name of the Administrator of Kaduna State from granting the 2nd respondent or purporting to grant him a right of occupancy

over the said property and if already granted, an order setting aside the said grant.

9. An order of injunction restraining the Defendants particularly the 2nd Defendant, from taking possession of the afore described property or from using any court or tribunal to secure the said possession on the ground that the 2nd Defendant purported right is null and void in as much as it is based on any transaction between him and the 1st Defendant or on the Deed of Legal Mortgage.

On the other hand, the 1st and 2nd Defendants filed their Joint Statement of Defence where they made the under mentioned counter-claim:-

a. “The sum of N=3,734,809.76K being outstanding balance in the plaintiff’s account into the 1st Defendant as at 27/9/96.

b. Compound interest at the rate of 21% per annum from 27/9/96 to date of judgment and thereafter, interest to accrue at the rate if 10% until liquidation of the entire judgment debt.