Alhaji Madi Mohammed Abubakar V Bebeji Oil And Allied Products Ltd. & 2 Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

A.M. MUKHTAR, JSC

The appellant instituted an action in the High Court of Kano State against the respondents in this appeal, over the ownership of a building at No. 59B Lamido Crescent, now No.15 Lamido Road Kano and more particularly described in the recertified certificate of occupancy No. LKN/RES/RC/82/1622. The property was built, in 1972 by Arewa Construction Limited for the plaintiff and he enjoyed peaceful possession of the building until 1977 when it was mistakenly forfeited to the Kano State Oil and Allied Products Ltd., under The Public Officers and other Persons (Forfeiture of Assets) Order 1977. The plaintiff petitioned both the Federal and Kano State Governments, and a Federal Investigation panel was set up. The investigation panel found that the property was wrongfully forfeited, and directed the State Government to reconsider the matter in order to redress the injustice done to the plaintiff. The Kano State Government after a further investigation found that the property was wrongfully confiscated, and the Military Governor of the State wrote to the plaintiff returning the said property. Series of letters were written to the relevant agents of the Government of Kano State to confirm the return of the property to the plaintiff. In spite of the letters the 3rd defendant (a successor in interest to Kano State Oil Mills) has continued to trespass on the property, thereby preventing the plaintiff from enjoying same. The plaintiff sent series of petitions in respect of this situation, but the 3rd defendant continued in the trespass. Consequently the plaintiff went to court seeking the following reliefs:

“17(a) A declaration that the plaintiff is the owner and the holder of a statutory right of occupancy over the land buildings and appurtenances situate at No.59B Lamido Crescent now 15 Lamido Road Nassarawa Kano covered by certificate of Occupancy No.LKN/RES/82/1622 and is entitled to the full ownership rights over same free from trespass from the Defendants and their agents.

17(b) A declaration that the 3rd Defendant continued entry and occupation of plaintiff s property since October, 1979 is unlawful, illegal and trespass.

17(c) N20 million aggravated damages for trespass against the Defendant.

17(d) N5 million damages jointly and severally against the Defendants wrongful deprivation of the rent the plaintiff would have earned on the, property from 1979 – date.

17(e) An order directing the Defendants whether by themselves, servants, their tenants, agents, privies or whosoever may be in the premises without the consent nor authority of the plaintiff to vacate immediately and give possession of the whole property at 15 Lamido Road Nassarawa Kano together with the appurtenances free from waste, destruction to the plaintiff.

17(f) A perpetual injunction restraining the Defendants whether by themselves, servants, agents, and privies from trespassing the plaintiffs property at 59B Lamido Crescent now 15B Lamido Road Kano or interfering in any manner with the plaintiff peaceful and quiet enjoyment of the same property. The 3rd Defendant denied most of the plaintiffs allegations, alleging that the certificate of occupancy above was obtained by fraud by the plaintiff as a result of destruction of the original records in respect of the premises after the out break of fire at the Ministry of Land and Survey, Kano. According to it the original certificate in respect of the property in controversy was cancelled by the Kano State legal Notice No. 7 No. 1977.

The 3rd defendant denied that it trespassed on the property as it has legal and equitable rights to the property, and also canvassed that an act done legislatively cannot be done administratively. PAGE| 4 A defence of res judicata was raised in the 3rd defendant’s statement of defence thus:

“16. The 3rd Defendant will also contend at the trial of this action that the so called letter of Group Captain Ishaya Shekari dated 25th September, 1979 has been invalidated by this court as per the ruling of this court in suit No.K/378/82 dated 18th day of August, 1983. Both the ruling of the court and the certificate of judgment issued thereon are hereby pleaded, and will be relied upon at the trial of this action. 17. The 3rd Defendant will also rely on the defence of Res judicata on the issue of declaration of ownership in respect of the premises in question and that defence is hereby specifically pleaded. In addition, the 3rd Defendant will also rely on the decision of Justice R.O. Rowland (as he then was) in suit No.K/378/82 on this matter, in respect of which no appeal had been lodged to date.”

The learned trial judge considered the above defence and learned counsel’s addresses, and ruled that his court had jurisdiction to try the case before him. After the exchange of pleadings parties adduced evidence, which were evaluated by the learned trial judge, who at the end of the day gave judgment in favour of the plaintiff declaring him the owner of the property in dispute. The 3rd defendant was dissatisfied with the decision, and so appealed to the Court of Appeal, and the plaintiff also cross-appealed. The Kaduna division of the Court of Appeal found the appeal meritorious and allowed it, concluding thus in the judgment:

“I therefore declare the judgment of the trial court in suit No.K/291/94 delivered on the 28th March, 1996 and all the proceedings relating to the said suit including the order as to costs a nullity and are hereby set aside. I strike out the claims of the 1st respondent before the Kano State High Court.”

Aggrieved by the above decision, the plaintiff appealed to this court on nine grounds of appeal, from which the appellant distilled six issues for determination in his brief of argument. As is the practice in this court learned counsel for the appellant and 1st – respondent exchanged briefs of argument, which were adopted at the hearing of the appeal. Four issues for determination were formulated in the 1st respondent’s brief of argument. The 2nd and 3rd respondents did not file a brief of argument. The issues in the appellant’s brief of argument are as follows:

“(1) Whether or not the decision of Kano High Court dated 22nd September, 1994 not appealed against by the 1st Respondent to the lower court was not conclusive of the issues raised and determined therein for which the lower court lacks jurisdiction to question its correctness.