Alhaji Musa Kala V. Alhaji Burau Potiskum & Anor (1998)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C.

This is a case involving inter-pleader action wherein the 1st respondent, Alhaji Barau Potiskum, by an inter-pleader summons take out in Potiskum High Court of the then Borno State, but now of Yobe State, claimed against the appellant, Alhaji Musa Kala as follows:-

“WHEREAS the claimant has made a claim to the house at Tudun Wada layout behind Coca Cola House Potiskum, taken in execution and under process issuing out of this Court at your instance. You are hereby summoned to appear at the court to be holden at Potiskum on the 20th day of May, 1987 at the hour of 9.00 in the FORE noon when the said claim will be adjudicated upon and such order made thereon as the court thinks fit.”

After service of the summons on the appellant both the claimant (1st respondent], and the appellant filed and exchanged pleadings. The 2nd respondent did not file anything as his whereabout could not be traced to be served with processes. 2nd respondent was absent throughout the trial of this action and was equally not represented.

The penultimate of the paragraphs of the “Grounds of Statement of Claim” and “Particulars of Denial of Claimant’s Claim” which stand as Statement of claim and Statement of Defence respectively, are as follows:-

“GROUNDS OF STATEMENT OF CLAIM

(2) The claimant is engaged in the business of road transportation, building and civil engineering construction. General merchant and supplier and dealer on motor vehicles.

(3) Sometimes in 1978. the claimant employed the judgment debtor in this case as his engineer and representative in charge of his fleet of lorries, tippers, tankers and general maintenance. That as an employee of the claimant. the judgment debtor was lodged in the attached house in this suit when the accommodation promised by the claimant was found to be inconvenient after his employment.

(4) That while inside the house in question the judgment creditor instituted an action against the judgment debtor at the Fika Upper Area Court Potiskum on 17/2/86 in suit No. 30/86. That during the pendency of that case the judgment creditor himself admitted in open court that he knows the house in question was not the property of the judgment debtor but that of the claimant. The claimant will lender and rely on the copy of proceedings in this case during the trial of this claim.

(5) That the claimant has been the person who built the said house in question sometimes before 1995 and have since then been exercising his rights or title and ownership including letting in tenants ever before the year the judgment debtor came to Potiskum and was employed by the claimant without any challenge from anybody. The various people who were let into the said house both as tenants and lodgers over the years will be called upon to testify during the trial of this claim as well as some of the construction labourers that may be available.

(6) That apart from the working relationship of employer and employee the claimant has not given away, sold, pledged or mortgaged the property to the judgment debtor and that this fact is known to and admitted by the judgment debtor.”

“PARTICULARS OF DENIAL OF CLAIMANT’S CLAIM

(3) The judgment creditor admits paragraph 8 of the grounds of claim in so far as it states that ” the judgment creditor instituted an action against the judgment debtor at Fika Upper Area Court Potiskum in suit No, 30/86″, But vehemently deny ever stating in open court in the proceeding: “that he knows the house in question was not the property of the judgment debtor but that of the claimant.”

A. The judgment creditor avers that the judgment debtor told him before and during the pendency of suit No, 30/86 that the house belonged to him as he had bought it from Alhaji Barau for the sum of N28,000,00