Ammani v. Balarabe & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Lead Judgment)

This appeal is against the judgment of the Court of Appeal, Sokoto Division, delivered on 7th December, 2012 wherein it set aside the judgment of the High Court of Zamfara State, delivered on 23/5/2008. The original appellant died and was substituted with the present appellant pursuant to an order of this Court made on 28th October, 2019. The Amended Notice of Appeal filed on 25th October, 2019 was deemed filed on 28th October, 2019.

The facts of the case giving rise to this appeal are as follows: The original plaintiff at the trial Court, Alhaji Ibrahim Ammani (deceased), father of the present appellant, obtained a loan from the 2nd respondent herein and mortgaged his property known as No. 64 TP, 115 along Kasuwar Danjuma Road, Sabon Gari Gusau, Zamfara State and covered by Certificate of Occupancy No. SS3, as security therefor. He defaulted in repaying the loan and the property was put up for auction vide a Notice of Auction Sale in the New Nigerian Newspaper of Friday 24th April, 1992, to the effect that the auction was to take place on 12th May, 1992 by 10am. The terms of the sale were published in a further notice by the auctioneer, one Alhaji Ahmadu Jido as follows:

“Terms of payment strictly 50 percent of the auctioned price on the spot sale is subject to the consideration and written approval of the mortgaged (sic) at its (sic) absolute discretion as it reserves the right to cancel the sale at any time without any notice.”

The auction sale took place as advertised. The 1st respondent paid the purchase price and was put into possession. A letter confirming the sale was written to the 1st respondent with a promise to hand over the Certificate of Occupancy at a later date. The 1st respondent, upon being put into possession renovated the property and altered the structure to suit his taste.

The original appellant, upon becoming aware of the sale about 3 months later, protested orally to the Assistant Genera} Manager, (Recovery) of the 2nd Respondent’s Sokoto branch requesting that all actions in respect of the auction sale be halted or stayed.
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As a result of the protest, a letter was written dated 7th September, 1992 directing the suspension of the sale. Furthermore, the 2nd respondent accepted the sum of N120,500.00 from the appellant’s father on 19th November, 1992, about 7 months after the 1st respondent had paid for the property and been put into possession.

The appellant’s father instituted an action before the trial Court and by his Amended Statement of Claim dated 27th June, 2006 and filed on the same date, sought the following reliefs against the respondents:
“1. A declaration that the 1st Defendant’s entry upon the plaintiff’s house/property situate and being at Tashar Magami, Sabon Gari, Gusau Layout covered by Certificate of Occupancy No. SS3 was illegal, unlawful and therefore amounted to trespass.

2. That the destruction caused the said property by the 1st defendant or his agents, privies or servants by demolishing or causing to be demolished plaintiff’s block of (building) single rooms consisting of 3 large rooms fitted with (plywood) flushed doors, louver windows, one bathroom and one toilet fitted with water heater, Bath Tub, W.C. (toilet) and a kitchen fitted with wash hand basin and other accessories without the authority and/or consent of the plaintiff amounted to further act of trespass.
3. The plaintiff

further claims perpetual injunction restraining the 1st defendant, his agents, privies and/or servants from causing further acts of trespass upon the said property including the plaintiff’s one storey building located at the said Sabon Gari (Gusau) Layout covered by Certificate of Occupancy No. SS3 aforesaid.
The plaintiff also claims that the sum of N5,700.00 being general damages for wilfully trespassing into the said property and demolishing or causing the same to be demolished.”

The 1st respondent, (as 1st defendant) in response, filed an Amended Statement of Defence and counter-claim. By his counter-claim, he sought the following reliefs:
“(a) An order of this Honourable Court confirming the auction sale of the property in dispute to the 1st defendant by the Federal Mortgage Bank of Nigeria (Now Federal Mortgage Finance Plc) conducted on the 12th day of May 1992.
(b) A declaration of this Honourable Court that the 1st defendant is entitled to have the title deeds of the property in dispute released to him by the Federal Mortgage Finance PLC.
(c) An order of this Honourable Court declaring that the purported released (sic) of title deeds of the property in dispute to the plaintiff as illegal, unlawful and of no legal effect.
(d) An order of this Honourable Court directing the plaintiff to handover to the 1st defendant the title deeds of the property in dispute allegedly released to him by the Federal Mortgaged Finance PLC.
(e) In the alternative the 1st defendant claims from the plaintiff and the 2nd defendant jointly and severally the sum of N3,275,000.00 as special damages suffered by the 1st defendant by way of expenditure on the property in dispute.
(f) The 1st defendant also claims the sum of N2,000,000.00 (Two Million Naira) as general damages for the inconveniences and costs of litigation.”

The plaintiff and 1st defendant testified in support of their pleadings and also tendered documentary evidence. At the conclusion of the trial and after careful consideration of the addresses of learned counsel, judgment was entered in the plaintiff’s favour. All his reliefs were granted and he was awarded the sum of N500,000.00 as damages for trespass. The 1st defendant’s counter-claim was dismissed.

Being wholly dissatisfied with the judgment, the 1st respondent appealed to the Court below. The appeal was allowed. The judgment of the trial Court was set aside and the plaintiff’s claims were dismissed. The 1st defendant’s counter-claim was granted as follows:
“1. The auction sale of the property in dispute to the appellant by the 2nd respondent (formerly Federal Mortgage Bank of Nigeria) on the 12th day of May, 1992 is hereby confirmed.

2. It is hereby declared that the appellant is entitled to have the title deeds of the property in dispute released to him by the 2nd respondent
3. It is declared that the purported released (sic) of the title deeds of the property in dispute to the 1st respondent by the 2nd respondent is illegal, unlawful and of no legal effect.
4. The 1st respondent is hereby ordered to forthwith hand over to the appellant the title deeds of the property in dispute allegedly released to him by the 2nd respondent.
5. The sum of N500,000.00 is hereby awarded against the 1st respondent in favour of the appellant as general damages.”

Not surprisingly, the appellant is seriously aggrieved by the judgment and has filed the instant appeal. The original notice of appeal is at pages 617 – 619 of the record. It is dated 21st January, 2013 and filed on 25th January, 2013. The Notice of Appeal was subsequently amended pursuant to an order of this Court as stated earlier.

At the hearing of the appeal on 22/2/2022, ADAH USMAN ESQ., adopted and relied on the Amended Notice of Appeal filed on 25/10/2019 along with the Amended Appellant’s brief filed the same day, both deemed filed on 28/10/2019 in urging the Court to allow the appeal. HASSAN U. EL-YAKUB, SAN adopted and relied on the 1st respondent’s brief filed on 29/1/2020 and deemed filed on 1/2/2021, incorporating arguments on his preliminary objection, in urging the Court to uphold the preliminary objection and strike out the appeal, or alternatively, to dismiss the appeal on the merit. ONYINYE P. JAMES ESQ., referred the Court to the 2nd respondent’s brief filed on 1/2/2021 and deemed filed on 26/4/2021 in which the Court was urged to allow the appeal.

It is well settled that the traditional role of a respondent is to defend the judgment appealed against. If it is intended to attack the judgment/ the respondent is required to file a cross-appeal.