Alhaji Mustapher Kachalla V. Alhaji Tijjani Banki & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

This is an appeal against the judgment of the Court of Appeal Jos Division, delivered on the 13th of March, 2001 whereby the decision of the High Court of Borno State dismissing the appellant’s claim was affirmed. Before the trial court, the appellant as the plaintiff in the amended statement of claim as per paragraph 9 thereof claimed thus:

(a) A declaration that he is the bona fide owner of the property, the subject matter of this suit.

(b) A declaration that the sale of his property is null and void and of no effect, and it be set aside and the property restored to him.

(c) A declaration that the judgment debtor before the above trial court has no interest or right in plaintiff’s property.

(d) A perpetual injunction restraining all the defendants from interfering with the plaintiff’s property including their agents, servants and privies.

(e) An award of N5,000.00 as damages against the defendants for trespass.

(f) Costs of this suit.

Pleadings were ordered, filed and exchanged. At the hearing, the parties testified and called other witnesses. Documentary evidence was also tendered. After the address of counsel and in his judgment delivered on the 18/11/1996, the learned trial Judge dismissed the claims of the plaintiff having found them devoid of substance. The plaintiff felt unhappy and appealed to the Court of Appeal. The Court of Appeal in its judgment delivered on the 13th day of March, 2001, dismissed the plaintiff’s appeal. This is a futher appeal to this court by the plaintiff, hereinafter referred to as the appellant. The defendants shall be referred to as the respondents. In the amended notice of appeal filed with leave of court; the appellant filed 4 grounds of appeal. Distilled from the grounds of appeal, the appellant has identified, formulated and submitted the following issues for the determination of the appeal:

1. Whether the learned Justices of the Court of Appeal were right in holding that the title and interest in the property did not pass to the appellant after sale of the house in question by Alhaji Bukar Kumshe to the appellant.
2. Whether the 2nd respondent acquires legal title over the property through his purchase of the property by an auction sale conducted by the Upper Area Court.
3. Whether the decision of the Court of Appeal is correct having regard to the nature of oral/documentary evidence adduced before the lower court.
4. Whether the Court of Appeal was right to have affirmed the decision of the trial Judge to dismiss plaintiff’s claim as it failed in its entirety when an order of non-suit is appropriate and accordingly ought to have been made in the circumstance.

The first respondent on the other hand has formulated two issues arising for the determination of the appeal:

1. Whether the appellant proved his title to the land in dispute to entitle him to the reliefs claimed in his amended statement of claim.
2. Whether the lower court was right in affirming the judgment of the trial court which dismissed the appellant’s case.

The second respondent has submitted the following two issues arising for determination of the appeal:

1. Whether from the evidence available to couts below, the equities of the appellant and second respondent are equal.
2. Whether the erroneous findings or slip or irregularities (if any) of the lower courts have occasioned miscarriage of justice.

Before discussing the relevant issues properly arising for the determination of the appeal, it is appropriate at this stage to set out the facts. The facts put shortly are not disputed or complicated.

Alhaji A. Bulama, or as he is sometimes known, Alhaji Bukar Kumshe was the holder of the Statutory Right of Occupancy No. BO/12220 in respect of a plot of land containing a 24 bedroom storey building of burnt bricks located at Kumshe ward, Maiduguri. Sometimes in March 1994, Alhaji Bukar Kumshe approached an estate agent, Alhaji Lawal Baaji (PW1 herein) and informed him of his desire to sell the property. Alhaji Lawai Baaji introduced him to the appellant, Alhaji Mustapha Kachalla who purchased the property in the sum of N1,200,000.00. The sale was evidenced by a written agreement (exhibit M.K 2) dated the 16th day of March, 1994. The appellant had earlier satisfied himself on the ownership of the property by the vendor, by conducting a search at the Lands Registry Maiduguri. After the payment, the appellant was handed over the Certificate of Occupancy and was given possession of the property, and the tenants therein were told of the change of ownership. In the meanwhile, Alhaji Tijani Banki, the first respondent herein in suit No. BUAC/CVF/107/94 claimed against the said Alhaji Bukar Kumshe payment for a debt in the sum of N1 ,680,000.00. Judgment was given in favour of the claimant against the defendant in the terms of the claim and costs on the 22/8/1994. It is also noteworthy that the appellant was unable to register the assignment to him of the Right of Occupancy because of a letter written to the Land Registry by the registrar of the Upper Area Court directing the Land Registry to stay any further transaction or change of ownership in respect of the Right of Occupancy. In the meanwhile, attempts were made to execute the judgment against the movable assets of Alhaji Bukar Kumshe, when no moveable assets were found to satisfy the judgment debt, Alhaji Tijani Banki, through his lawyers, applied to execute the judgment on the immovable assets of the judgment debtor, Alhaji Bukar Kumshe. On the 18/4/1995 at a public auction conducted by the Registrar of the Upper Area Court 1, after due advertisement, Alhaji Umary Ngelzarma, the second respondent herein as the highest bidder, purchased the property at the rate of N520,000.00. In his judgment the learned trial Judge held:

At all material times, the Certificate of Occupancy was vested in Alhaji Bukar Kumshe (otherwise called Alhaji Bukar A. Bulama) to whom the same was issued as No. BO/12220 (exhibit M.K.) dated 17th July, 1985. From the plaintiff’s view point, he bought the land from Alhaji Bukar Kumshe on the 16th March, 1994 for N1.2 Million xxx. Having set out the provisions of the agreement, one appreciate that it does not convey any legal right or interests to the plaintiff, Alhaji Mustapha Kachalla. At best it is only a receipt as pleaded, evidencing the sale for the purchase price therein. And at best, it could possibly vest equitable right or interest in the purchaser.