Alhaji Yusufu Na Bayi V. Rabiu Yalo Kogari (2007)

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BABA ALKALI BA’ABA, J.C.A.

This is an appeal against the judgment of the High Court of Justice, Katsina State, in its appellate jurisdiction, holden in Malumfashi Judicial Division, delivered by Hon. Justice Sada Abdulmumini in an appeal filed by the respondent at the Upper Area Court Malumfashi against the judgment of the Area Court, Jikamshi which gave judgment in favour of the appellant who was the plaintiff before the Jikamshi Area Court. In its judgment, delivered on the 19th day of October, 2002, the Katsina State High Court set aside the judgment of the Upper Area Court Malumfashi which affirmed the decision of the Area Court, Jikamshi.

The facts leading to this appeal briefly are as follows: One Magaji Kurma now deceased had a farm that shares common boundary with the respondent’s house. As a result, the appellant and late Magaji Kurma used to quarrel every raining season. Because of the mischief usually caused by the’ appellant’s sheep and goats, the late Magaji Kurma promised that whenever he decided to sell his farmland he would sell it to the appellant and in furtherance of that promise, Magaji Kurma, sent his son one Usman to the appellant in respect of the sale of the said farmland. However, Usman sold the farmland to the respondent contrary to his father’s instruction. At the trial Area Court, Jikamshi, Usman admitted being sent by his father Magaji Kurma to offer the farm for sale to the appellant. According to Usman on his way to the appellant’s house, the respondent intercepted him and bought the farmland at the cost of N9,000.00 (Nine Thousand Naira) but Usman did not disclose to his father, Magaji Kurma, that it was the respondent that purchased the farm and not the appellant. Magaji Kurma only came to know about the sale to the respondent at a later stage, having received the purchase price of N9, 000.00 about one month ago. At the trial Area Court Jikamshi, Magaji Kurma informed the court that his intention was to sell the farmland to the appellant who was his neighbour. At the end of the hearing, judgment was entered in favour of the appellant who was the plaintiff and the sale transaction of the farmland to the respondent by Usman, was revoked.

The respondent was aggrieved by the decision of the trial court, Jikamshi consequent upon which, he appealed to the Upper Area Court, Malumfashi, which after reviewing the record of the trial court, Jikamshi affirmed the decision of the Area court, Jikamshi. The respondent was not satisfied with the decision of the Upper Area Court, Malumfashi, as a result, he further appealed to the High Court of Justice, Katsina State, in its appellate jurisdiction. The appeal was heard and judgment delivered by the Katsina State High Court in favour of the present respondent in this appeal who was the appellant before the Katsina State High Court. The Katsina State High Court, inter alia held:

“With regard to the doctrine of neighbourhood raised it only applied to property jointly owned by two or more parties which also has not been ascertained. Once a property belongs to someone and it is ascertained property not jointly owned together with another person, the owner can sell it to anyone of his choice or even give it free by (sic) to any other person not necessarily the person neighbouring (sic) the property……………..

In view of what we have stated above we disagree with the decision on (sic) both the trial Area Court and Upper Area Court. We set aside the decisions of upper which confirmed the decision of the trial court. We confirm the sale of the farmland to the Appellant. Appeal is allowed entirely.”

On the 17th of March, 2005, this Court granted the appellant leave to appeal against the judgment of the Katsina State High Court delivered on 19/10/2001, and also leave to file and serve the notice and grounds of appeal against the said judgment.

In this appeal, only the appellant filed the appellant’s brief dated 25/10/05 deemed properly filed and served by this Court on 27/10/2005.

At the hearing of the appeal on the 22nd day of February 2007, the appellant’s counsel adopted the appellant’s brief and urged the court to allow the appeal.

However, the respondent though duly served on the 16/1/07 was absent, not represented and has not filed the respondent’s brief.

The appellant formulated three issues for determination in this appeal as follows:

“3.1.WHETHER the lower court was not in error of the law by considering the agreement between the appellant and Magaji Kurma is a mere promise to sell.

3.2 WHETHER the lower court was right in holding that there was no offer or acceptance between the appellant and Magaji Kurma.

3.3 WHETHER the lower court was right in disturbing the concurrent findings of both trial Area Court Jikamshi and Upper Area Court Malumfashi.”