Alhaji Ibrahim Sheka V. Alhaji Umaru Bashari (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Kano State in Suit No K/66/2009 delivered by Honorable Justice Tani Yusuf Hassan on the 21st of July, 2010. The claims of the Appellant, as plaintiff, before lower Court against the Respondent, as defendant, were for:

i. A declaration by this Honorable Court that the action of the Defendant of forcefully ejecting and seizing the goods of the plaintiff as well as his moveable properties taken away from his shop at Kwari Market, Kano without issuing him with the mandatory statutory notice is unlawful.

ii. An order of this Honorable Court directing the Defendant to pay to the plaintiff the sum of N1,500,000.00 only being the value of the plaintiff’s goods seized by the Defendant or alternatively, directing the Defendant to return and hand over to the Plaintiff all his moveable properties and goods seized and taken away by the Defendant from the Plaintiff’s shop at Kwari Market, Kano.

iii. The sum of N2,000,000.00 as general damages for trespass and the detinue of the goods of the Plaintiff by the Defendant and general inconvenience and hardship occasioned by the said act of the Defendant.

iv. An order of this Honorable Court restoring the Plaintiff back into possession of the said shop at Kwari Market, Kano where the Defendant forcefully and unlawfully ejected him.

The matter went to trial and the Appellant called three witnesses in proof of his case while the Defendant called four witnesses. At the conclusion of trial, the lower Court entered judgment dismissing the entire claims of the Appellant, The Appellant was dissatisfied with the judgment and he caused to be filed a notice of appeal dated the 16th of September, 2010 against it and it contained four grounds of appeal.

The dispute in this matter revolved around a shop located, being and known as Shop 37/41 Kanti Kwari Market Fagge Takudu in Kano. The Defendant was the Managing Agent of the shop and he had been managing the shop for many years. The statement of claim of the Appellant in this matter was filed on the 9th of February, 2009 (see pages 5 to 7 of the records) and it was his case therein that he rented the said shop many years ago together with one late Hajia Maryam Siala and that both of them used the shop for their business of selling ile materials of assorted kinds until Hajia Maryam Siala died.

It was his case that this fact of the joint usage of the shop by himself and late Hajia Maryam Siala was to the knowledge of the Respondent and that he paid a yearly rent of N200,000.00 to the Respondent since he became a tenant in the shop. It was the his case that he usually bought goods for the shop on credit from his customers and that he paid up for the goods after selling them in the shop and that sometime in 2008, the Respondent used the Police to forcibly eject him from the shop and trumped up a criminal case against him.

It was the case of the Appellant that he was not issued with the requisite statutory notices to determine his tenancy before the Respondent trespassed into the shop and resorted to self help to take possession of the shop from him and that he was forcefully ejected from the shop and his good therein were taken away. It was his case that the value of the goods seized from him and detained by the Respondent was N1.5 Million and he gave a breakdown of the goods and their costs. It was his case that he suffered a great damage from loss of business and profit by reason of the forcible ejection and that he used to make a profit of N50,000.00 monthly in the shop.

It was his case that his customers not only stopped supplying him with goods on credit as a result of the Respondent’s action but also started demanding for payment for the goods already supplied on credit and which were seized by the Respondent. It was his case that by reason of his being a tenant in the said shop, there was an implied covenant in his favour that he will have quiet enjoyment and possession of the shop and that the Respondent breached this covenant by resorting to self help.

The statement of defence of the Respondent, as defendant, was dated the 28th of April, 2009 (see pages 83 to 86 of the records) and the case of the Respondent therein was that he let out the shop in question to one Mustapha Siala as evidenced by a tenancy agreement dated 19th of May, 1971 and that on the death of Mustapha Siala, his wife, Maryam Siala took over the tenancy, It was his case that he had no tenancy arrangement with the Appellant and that the Appellant was only a salesman selling ile materials for Mustapha Siala, and was subsequently retained by Maryam Siala after the death of her husband on a weekly allowance. It was his case that he did not use the Police to recover possession of the shop from the Appellant but that he recovered possession by instituting an action in the Magistrate Court in Kano in Suit No KA/165/2008 against M. Siala and Najala Mustapha and that a consent judgment was entered by the Magistrate Court on the 27th of May 2008 and he was awarded possession of the shop. It was his case that he never made any criminal complaint to the police against the Appellant but that he was aware that one Najala Mustapha made such a complaint against the Appellant.

It was the case of the Respondent that the goods in the shop were taken away by the officers of the Court in the execution of a judgment of the Court and they were kept in the custody of the Court and that he was not in breach of any covenant with the Appellant and that the Appellant was not entitled to any statutory notice as there was no tenancy relationship between them. It was his case that the goods in the shop originally belonged to Mustapha Siala and later to his wife, Maryam Siala, and who in turn bequeathed them by her last Will dated 13th of February, 1995 to Mustapha Ajieli-Moudi, Nuha Ajieli-Moudi and Maryam Ajieli-Moudi, all children of Najla Mustapha.

In compliance with the Rules of this Court, the Appellant filed a brief of arguments dated the 2nd of December, 2010 and it consisted of eleven pages. The Respondent filed a brief of arguments consisting of nineteen pages and dated the 17th of January, 2011 and it was deemed properly fifed on the 24th of March, 2011. The Appellant filed a reply brief consisting of five pages and it was dated the 29th of March, 2011. At the hearing of the appeal on the 20th of March, 2013, Counsel to the Appellant and to the Respondent relied on and adopted their respective briefs of arguments.