Alhaji A. A. Khalifa V. MR. Frank Onotu & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the High Court of Kaduna State (hereinafter referred to as the lower Court) in suit No. KDH/KAD/1027/2012, delivered on the 22nd of October, 2014, by Justice HANNATU A. L. BALOGUN. Sometime in 2012, Alhaji A. A. Khalifa, (the appellant) instituted a suit against Mr. Frank Onotu and Opurum & Partners (the respondents), seeking the following reliefs:

“a. A declaration that the improvements or developments carried out on property No. 4, Galadima Road, Ungwan Rimi, Kaduna in the sum of N14 Million is for the purpose of advance payment for rent to the 1st defendant.

b. An order of this Court restraining the defendants themselves, their agents, privies or assigns or any person directly or by necessary implication whatsoever and howsoever from ejecting out, removing out, or parking out the plaintiff from property No. 4, Galadima Road, Unguwan Rimi, Kaduna pending the determination of this suit.

c. An order of this Court setting aside the notice of owner’s intention to recover possession of house No. 4 Galadima Road, Unguwan

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Rimi, Kaduna served on the plaintiff dated 3rd December, 2012.”

Pleadings were filed, issues joined and the matter went to trial. The appellant testified at the trial. At this stage of the hearing of the case he became dissatisfied with the way and manner his counsel was handling and prosecuting the case on his behalf. He therefore brought an application before the lower Court seeking for leave to change counsel.

Leave to change counsel was granted on the 5th of March, 2014. He thereafter engaged Falalu Bello & Co. to prosecute the case for him. Upon taking over the case, the new counsel found that there was the need to amend the statement of claim earlier filed by the previous counsel. Consequently a motion on notice was filed on the 25th of September 2014, praying the lower Court for the following orders:

“1. An order granting leave to the plaintiff/applicant to amend his originating process, statement of claim and other accompanying process.

2. An order deeming the amended originating process, amended statement of claim and other processes attached hereto as “Exhibit 1” as properly filed and served.
3. An order setting aside the

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evidence of PW1 and recalling him to testify on his amended claims before this Honourable Court.

4. An order appointing and directing an independent Estate Surveyors & Valuers from valuation Department of Ministry of Lands, Survey and Country Planning Kaduna to immediately enter, assess value and quantify in monetary terms the renovations carried out by the plaintiff in property No. 4, Galadima Road, Ungwan Rimi, Kaduna.
5. An order either fixing or appointing a Judge of the Rent Tribunal of Kaduna state as an “official referee” for the purpose of assessing the appropriate rents payable on property No. 4 Galadima Road, Ungwan Rimi, Kaduna since the expiration of the initial rent in accordance with the Rent Restriction Law Cap. 133 Laws of Kaduna State.”

The application of the appellant was supported by an affidavit and a further affidavit. The respondent filed a counter-affidavit challenging the depositions contained in the affidavit in support of the application. After addresses of learned counsel, and consideration of the entire application, the learned trial Judge delivered her ruling on the 22nd of October, 2014, wherein all the reliefs

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