Alhaji Mohammed Maina Waziri V. Ibrahim Tahir Gumel & Anor (2012)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal against the Ruling of the Court of Appeal, Abuja Division in Appeal/Motion NO. CA/A/77/2001 delivered on Monday, the 30th day of June 2003 wherein the Court of Appeal granted the 1st Respondent extension of time to appeal as an interested party against the decision of the High Court of the Federal Capital Territory, Abuja delivered on 26th September 1994 and 31st October, 1994.

The appellant being dissatisfied with the said Ruling of the Court below lodged an appeal against it on 18th May, 2006. Facts briefly stated are that on 20th January 1993 the 2nd Respondent, as the allottee of the property situated at Asokoro District and measuring 2251.81 square metres and covered by Certificate of occupancy No. MFCT/ABU/FCT/272 dated 17th December 1993 transferred all his interest therein to him (the 1st Respondent) for a consideration of N1,000,000.00 (One million naira).

A receipt which the 1st Respondent claimed the 2nd Respondent issued to him was attached as Exhibit ITG 1, no deed of assignment was shown by the 1st Respondent inspite of the allegation in paragraph 5 (a) of the supporting affidavit that the 2nd Respondent “transferred all his rights and interest in the said property to him.”

The 1st Respondent further stated that he discovered sometime in 1996 that someone else, i.e. the Appellant herein, was claiming possession of the property and was making obvious efforts to develop the property and instructed his counsel, the firm of A.A. Umar & Co. To institute an action against the Appellant and the said firm filed suit No. FCT/HC/CV/460/96.

1st Respondent further stated that it was in the course of proceedings in the suit he discovered that the Appellant had a Judgment of the trial court in suit No. FCT/HC/CV/34/93 vesting title to the property in question in the Appellant. He said he instructed A.A. Umar & Co to appeal against the judgment of the Lower Court. .The date the instruction was given was not demonstrated by the Respondent. Four years (4) later, sometime in May 2000, the 1st Respondent said his Lawyers complained of Logistic problems and ceased representing him. He said he therefore engaged the firm of Messrs sunny Wonrenwu & Associates in September 2000 to take up his matters, but that in January 2001, the new firm declined further representation in view of a community Land matter its principal Counsel was involved in his Home town and returned the case files to him. According to the 1st Respondent, he therefore briefed the firm of Messrs Rickey Tarfa & Co to take up his representation in February 2001 and later after studying the file, said nothing had been done to protect his interest and advised him to file an application for extension of time to appeal as an interested party, The Deponent of the Affidavit in support concluded by stating that the delay in bringing the application was not out of disrespect for the court below.

The 1st and 2nd Further Affidavits earlier referred to were filed by Sunny Worenwu Esq and Nasiru A. Umar & Co explaining their roles in the matter. These further affidavits were based on the advice of the Court below on 30th January 2002.

The Appellant filed on the 20th May 2002, a counter – affidavit in opposition to the application. Therein it was deposed that the 2nd Respondent sold the property to the Appellant on 28th October 1992 upon the payment of an initial deposit of N205,000.00 but because the 2nd Respondent refused to collect the balance on ground that he needed to first seek and obtain the consent of the Minister of the Federal Capital Territory (FCT) and since no such consent had been obtained he was no longer completing the sale, the Appellant sued the 2nd Respondent for specific performance of the contract of sale via suit NO. FCT/HC/CV/34/93.

It was further deposed that throughout the- proceedings there was no mention of the 1st Respondent herein or any interest held by him. After the trial Court’s Judgment, the 2nd Respondent collected the balance of the sale. Relevant copies of documents conveying the 2nd Respondent’s rights and interests in the property to the Appellant were annexed to the Counter – affidavit.

Importantly, the Appellant further deposed that it is not true that the 2nd Respondent sold the property to the 1st Respondent and that there is no record of any such sale in the records of the Land Registry of the F.C.T. and that in any event the Appellant’s interest on the land was prior in time over and above that of any other person including the 1st Respondent herein. The Appellant in the said Counter – Affidavit also deposed that he had been in possession of the property since 1992 and has carried out extensive development thereon.

Most importantly, and in showing the abuse of Court process inherent in the 1st Respondent’s application at the lower Court, the Appellant at paragraph 17 of his counter-Affidavit deposed as following:

“That the Applicant/Interested party instituted at the Federal Capital Territory High court Abuja wherein his claim to the land will be decided one way or other. A copy of the writ of summons and the amended statement of claim are hereby annexed as Exhibit ‘D’.”

Lastly, the Appellant dismissed the depositions in the First and Second Further Affidavits filed by Sunny Wonrenwu, Esq. and Nasiru A. Aliyu, Esq. as being entirely false and a bundle of afterthought. The 1st Respondent’s Reply to this counter-Affidavit is reproduced at pages 59- 60 of the Record.

The 2nd Respondent also filed a Counter-Affidavit to the 1st Respondent’s application. Therein the 2nd Respondent deposed that the 1st Respondent herein did not take any step to appeal against the trial court’s Judgment since becoming aware of it and was only applying for leave to do so after eight (8) years. He also urged the Court below to refuse the application. See page 45 of the Record.