Alhaji Yakubu Na’allah V. Alhaji Amadu Ajiyan Gombe (2014)

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 ruling of the High court of Kano State in suit No K/177/2006 delivered by Honourable Justice Mohammed Haliru Abdullahi on the 13th of July, 2006 entering judgment in favour of the Respondent under the Undefended List Procedure.

The Respondent commenced the action under the Undefended List procedure against the Appellant and one Alhaji Mustapha Bukar, as first and second defendants, and his claims were for:

i. The payment of the sum of N7.5 Million jointly and severally by the defendants to the plaintiff being the purchase price of a property covered by certificate of occupancy No KLN/RES/87/2002 situate at Sani Mai Nagge Kano paid by the plaintiff to the defendants on the 8th of November, 2006, however upon the said payment, the defendants refused, failed and neglected to deliver up possession of the said property to the plaintiff and neglected to refund or pay over the said sum to the plaintiff despite repeated demands.

ii. Payment of the cost of this action to be assessed by the Court.

The case of the Respondent on the affidavit of facts in support of the case under the Undefended List was that on the 8th of November, 2003, the Appellant sold a property belonging to the second defendant covered by Certificate of. Occupancy No LKN/RES/87/2002 situate at Sani Mai Nagge Kano to him for the sum of N7.5 Million and for which he made payment by a bank draft dated the 6th of November, 2003 made out in the name of the Appellant and that he handed the bank draft to the Appellant in the presence of the second defendant and the Appellant issued him a receipt therefor.

The photocopies of the bank draft and of the receipt were attached as MM1 and MM2. It was his case that the Appellant issued a notice to the occupants of the property to vacate and that when the occupants failed to vacate the premises, the Appellant and the second defendant failed and neglected to evict the occupants and to hand over possession to him and whereupon he demanded for a refund of his money; the notice to the occupants to vacate was MM3.

It was his case that when the Appellant refused to refund his money, he caused his Solicitors to write a formal letter of demand for the money and to which the Appellant responded acknowledging the indebtedness; copies of the letter of demand and the letter from the Appellant were MM4 and MM5. It was his case that the Appellant and the second defendant had failed and neglected to refund the money to him despite repeated demands.

The Appellant filed a notice of intention to defend and it was supported by an affidavit of facts. The case of the Appellant on the affidavit was he was not the owner of nor did he have any vested interested in the property coveted by Certificate of Occupancy No LKN/RES/87/2002 situate at Sani Mai Nagge Kano and that the role he played in the entire transaction was that of a Solicitor to a disclosed principal.

It was his case that the bank draft was issued in his name and that he issued the receipt, MM2, as the Solicitor to the vendor and that upon receiving credit for the money, he issued an Afribank cheque in the sum of N7.5 Million in favour of one Mustapha Isa, the owner and vendor of the property and that he sent the cheque under cover of a letter, Exhibit 1.

It was his case that the vendor of the property was not the second defendant but Mustapha Isa and that his letter acknowledging the indebtedness, MM5, was not meant for the consumption of the court and unless the matter was transferred to the general cause list, proper parties will not be joined.

The records of the Court show that the Appellant filed a motion dated the 11th of May, 2006 before the lower court praying for an order striking out the name of the second defendant as a party and to substitute Mustapha Isa as the second defendant on the ground that he was the person that sold the property covered by Certificate of occupancy No LKN/RES/87/2002 and it is only after he is joined that the effective orders can be made in the matter.

The records show that counsel to the Appellant moved the motion on the 1st of June, 2006 and that the application was opposed by counsel to the Respondent on the ground that the application was clearly outside the purview of Order 23 Rule 4 of the High Court Rules and that the lower court agreed with Counsel to the Respondent and it struck out the application. The Appellant did not appeal against this decision of the lower Court.

The lower Court heard the matter under the Undefended List and in its ruling delivered on the 13th of July, 2006, after stating the respective cases of the parties, stated thus: