Alhaji Abubakar Mohammed Gwarzo V. Alhaji Ameen Suleiman Mohammed & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

The record of appeal before this Court depicts that the Appellant commenced legal proceedings against the Respondents before the Kano State High Court by way of originating summons dated the 10th September, 2007 and sought for the following declarations:

“(a) A declaration that the Judgment of this Honourable Court in Suit No. K/258/1993 delivered on the 31st January, 2000 is a nullity regard being had to the existence of the Judgment of this Honourable Court in Suit No. K/347/1992 delivered on the 27th day of November, 1992 which was valid and subsisting as at the time the judgment in Suit No. K/258/1993 was delivered.

(b) A declaration that as at the 31st day of January, 2000 the 1st Defendant’s title over the property in contention has been extinguished and he could not have been adjudged to have any title or interest to pass over to the 2nd Defendant.

(c) A declaration that the Plaintiff’s title over the property in contention could have been adversely affected by the judgment of this Court delivered on the 27th day of November, 1992 (sic) in Suit No. K/258/1993.

(d) A declaration that the Plaintiff enjoys priority of title over the Defendants regard being had to the legal principles of priority of title as it relates to landed property.

(e) A declaration that the right to litigate and prosecute Suit No. K/258/1993 as at the time of the institution of the Suit had been defeated by the existence of Suit No. K/347/1992 and the principles of estoppel, res judicata, laches and acquiescence and standing by.

(f) An order of this Honourable Court setting aside the judgment of this Honourable Court in Suit No. K/258/1993 delivered on 31st day of January, 2000.

(g) An Order of this Honourable Court confirming the title of the Plaintiff over the property covered by Certificate of Occupancy No. LKN/RES/RC/82/1750 as vested in him in pursuance of the enrolled Order of this Court dated the 19th day of May, 1993, the bailiff’s receipt dated the 3rd day of January, 1995 and the Certificate of purchase dated the 19th day of August, 1993 evidencing the sale of the landed property.

(h) An Order of this Honourable Court directing the Defendants to deliver possession of the property unto the Plaintiff forthwith.

(i) An Order of Perpetual injunction restraining the Defendants by themselves, agents servants or whomsoever from further trespassing or disturbing the Plaintiffs possession and enjoyment of the property covered by Certificate of Occupancy No. LKN/RES/RC/82/1750 as vested in him in pursuance of the enrolled order of this Honourable Court dated the 19th day of May, 1993 and Certificate of Purchase of land dated the 19th day of August, 1993 evidencing the sale of the landed property”.

In the said Appellant’s Originating Summons, five questions were raised for determination by the lower Court. They were as follows:

“1. Whether the Judgment of this Honourable Court in Suit No. K/258/1993 delivered on the 31st day of January, 2000 is not a nullity regard being had to the Judgment of this Court in Suit No. K/347/1992 delivered on 27th day of November, 1992 in pursuance of which the landed property giving rise to the respective Suits was sold to the Plaintiff.

2. Whether as at 31st day January, 2000 Musa Adamu could have been adjudged to have any vested title and interest in the property in contention that could have been passed on to him by the Court.
3. Whether title of the Plaintiff in the property vested in him in pursuance of the judgment of this Honourable Court in Suit No. K/347/1992 dated the 27th day of November, 1992 could have been adversely affected by the subsequent judgment of this Honourable Court in Suit No. K/258/1993 regard being had to the enrolled order of this Honourable Court dated the 19th May, 1993, bailiff receipt dated the 3rd day of January, 1995 and Certificate of Purchase of land dated the 19th day of August, 1995 evidencing the sale of the landed property.
4. Whether by the principle of priority in land matters, the Plaintiff does not enjoy superiority of title over the Defendants regard being had to the competing judgment and their respective times of delivery.
5. Whether the Defendants’ right to litigate and prosecute Suit No. K/258/1993 has not been defeated by the existence of Suit No. K/347/92 and the operation of the principles of estoppel, res judicata, laches, acquiescence and standing by, having regard to the Defendants’ failure to partake in the proceedings in Suit No. K/347/92 which was earlier in point of time than Suit No. K/258/1993”.

The facts proffered in support of the suit were averred by one Abdurrahman Mukutar Abdullahi Esq; Legal practitioner in the Law Firm of Messrs A. A. Malami & Co., the Appellant’s counsel; in the affidavit of five paragraphs sworn to by him. Equally made available for the perusal of the Lower Court were Exhibits ‘A’ – ‘F’ attached to the said affidavit.